POOLING AND SERVICING AGREEMENT
between
AMERICREDIT CANADA 2002-A CORP.
as Seller
and
MERRILL LYNCH FINANCIAL ASSETS INC.
as Issuer
and
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD.
as Servicer
and
BANK ONE, NA
as Backup Servicer
and
THE TRUST COMPANY OF BANK OF MONTREAL
as Custodian
Dated as of May 17, 2002
TABLE OF CONTENTS
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POOLING AND SERVICING AGREEMENT dated as of May 17, 2002, between
AMERICREDIT CANADA 2002-A CORP., a corporation incorporated under the federal
laws of Canada, in its capacity as seller (the "Seller"), MERRILL LYNCH
FINANCIAL ASSETS INC., a corporation incorporated under the federal laws of
Canada (the "Issuer"), AMERICREDIT FINANCIAL SERVICES OF CANADA LTD., a
corporation incorporated under the laws of the Province of Ontario, in its
capacity as servicer (the "Servicer"), BANK ONE, NA, a national banking
association organized under the laws of the United States, in its capacity as
backup servicer (the "Backup Servicer"), and THE TRUST COMPANY OF BANK OF
MONTREAL, a trust company governed by the federal laws of Canada, in its
capacity as custodian (the "Custodian").
WHEREAS the Issuer desires to purchase a portfolio of receivables and
certain related assets arising in connection with motor vehicle retail
instalment sale contracts made by the Seller or acquired by the Seller through
motor vehicle dealers;
AND WHEREAS the Seller is willing to sell such receivables and related
assets to the Issuer;
AND WHEREAS the Servicer is willing to service such receivables and
related assets;
AND WHEREAS the Issuer is willing to transfer such receivables and related
assets to the Custodian, as agent, nominee and bailee for the benefit of the
Certificateholders (as defined herein) and to issue the Certificates (as defined
herein) to the Certificateholders;
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions.
Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
"ACAR Series 2002-A Certificateholders' Assets" means the Purchased
Assets, amounts held in the Depository Account with respect to the Automobile
Loans sold in connection with the ACAR Series 2002-A Certificateholders' Assets,
amounts on deposit in the Collection Account, amounts on deposit in the Spread
Account and amounts on deposit in the Accumulation Account, all funds and
Eligible Investments on deposit in or credited to such accounts (including all
Investment Earnings thereon), certain other rights under this Agreement and all
proceeds of the foregoing.
"Accelerated Certificate Balance Distributable Amount" means, for any
Distribution Date, an amount equal to the lesser of:
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(1) the amount on deposit in the Spread Account after giving effect to all
deposits to the Spread Account and withdrawals from the Spread Account as
described in items (i) through (v) in Section 6.5(a), in excess of the lesser of
(i) 2% of the Initial Pool Balance, and (ii) the Adjusted Certificate Balance;
and
(2) the excess, if any, of:
(a) the sum of:
(x) the Adjusted Certificate Balance for such Distribution Date;
minus
(y) the amounts deposited to the Accumulation Account in respect of the
Certificateholders' Certificate Balance Distributable Amount for the
current Distribution Date;
over
(b) the Required Adjusted Certificate Balance for such Distribution Date.
"Accountants' Report" has the meaning ascribed thereto in Section 5.11.
"Accounting Date" means, with respect to any Collection Period, the last
day of such Collection Period.
"Accumulation Account" means the account designated as such, established
and maintained pursuant to Section 6.1.
"Adjusted Certificate Balance" means, for the Class A, Class B and Class C
Certificates for any Distribution Date, prior to giving effect to amounts paid
on that date, the aggregate of the outstanding Certificate Balances for the
Classes on the Distribution Date less the Certificate Balance Accumulation
Amount on deposit in the Accumulation Account prior to giving effect to deposits
and withdrawals on such date.
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Aggregate Principal Balance" means, with respect to any Determination
Date, the sum of the Principal Balances for all Automobile Loans (other than (i)
any Automobile Loan that became a Liquidated Automobile Loan prior to the end of
the related Collection Period and (ii)
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any Automobile Loan that became a Purchased Automobile Loan prior to the end of
the related Collection Period) as of such Determination Date.
"Agreement" means this Pooling and Servicing Agreement, as amended,
modified, supplemented or restated from time to time.
"AmeriCredit Assignment" means the assignment dated as of the Closing Date
from AmeriCredit Canada to the Seller.
"AmeriCredit Canada" means AmeriCredit Financial Services of Canada Ltd.,
and its successors and permitted assigns hereunder.
"AmeriCredit US Custodial Agreement" means the custodial agreement dated
as of the Closing Date between the Documentary Custodian and the Custodian, as
amended, modified, supplemented or restated from time to time.
"Amount Financed" means, with respect to an Automobile Loan, the aggregate
amount advanced under such Automobile Loan toward the purchase price of the
Financed Vehicle and any related costs, including amounts advanced at the time
the Automobile Loan is originated in respect of accessories, insurance premiums,
service, car club and warranty contracts and other items customarily financed as
part of retail automobile instalment sale contracts or promissory notes, and
related costs.
"Annual Percentage Rate" or "APR" of an Automobile Loan means the annual
percentage rate of finance charges or service charges, as stated in such
Automobile Loan.
"Authenticating Agent" means the Person appointed and acting as such
pursuant to Section 11.11.
"Automobile Loan" means any motor vehicle retail instalment sale contract
listed on the Schedule of Automobile Loans.
"Automobile Loan Files" means the documents specified in Section 4.1(b).
"Available Funds" means, on each Distribution Date, the sum of (i) the
Collected Funds for the preceding Collection Period, plus (ii) all Purchase
Amounts deposited in the Collection Account during the preceding Collection
Period, plus (iii) all proceeds of payments made by the Interest Rate Cap
Counterparty under the Interest Rate Cap (other than any Early Termination
Payments) or by the Interest Rate Cap Guarantor under the Interest Rate Cap
Guarantee (other than in respect of any Early Termination Payments) on or before
such Distribution Date, plus (iv) all Investment Earnings for such Distribution
Date.
"Backup Servicer" means Bank One, NA, in its capacity as backup servicer
hereunder and its successors in such capacity.
"Basic Documents" means this Agreement, the AmeriCredit Assignment, the
Seller Assignment, the Interest Rate Cap, the AmeriCredit US Custodial
Agreement, the Purchase Agreement and other documents and certificates delivered
in connection therewith.
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"Book-Entry Certificates" means a beneficial interest in the
fully-registered book-entry only certificates representing each of the Class
A-1, Class A-2, Class A-3, Class B and Class C Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 7.3.
"Business Day" means a day other than a Saturday, a Sunday or other day on
which commercial banks located in Toronto, Ontario or Fort Worth, Texas are not
open for business.
"CDOR" means, for any Class A-1 Interest Period, the annual rate of
interest that is equal to the average rate (rounded, if necessary, to the
nearest 1/100,000 of one percent) for 90 day Canadian dollar banker's
acceptances that appears on the Reuters screen CDOR Page as of 10:00 a.m.,
Toronto time, on the second Business Day immediately preceding the first day of
such Class A-1 Interest Period.
"Certificate" means any of the certificates of the Issuer designated as
AmeriCredit Canada Automobile Receivables Co-Ownership Certificates, Series
2002-A as executed by the Certificate Registrar and authenticated and delivered
hereunder by the Authenticating Agent.
"Certificate Balance" means, for any Class of Offered Certificates at any
time, initially, the Initial Certificate Balance for such Class and, thereafter,
equals the Initial Certificate Balance of such Class reduced by all amounts
allocable to the Certificate Balance of such Class previously distributed to the
holders of such Class.
"Certificate Balance Accumulation Amount" means for any Distribution Date,
the sum of (i) the aggregate of the Certificateholders' Certificate Balance
Distributable Amounts, (ii) the aggregate of the Accelerated Certificate Balance
Distributable Amounts and (iii) any Maturity Advances, in each case, on deposit
in the Accumulation Account on that date (after giving effect to all deposits
to, but prior to any distributions from, the Accumulation Account on that date).
"Certificate Balance Distributable Amount" means, with respect to any
Distribution Date, the amount equal to the sum of:
(a) collections received on Automobile Loans (other than Liquidated
Automobile Loans and Purchased Automobile Loans) that are
allocable to principal, including any full and partial
principal prepayments, during the related Collection Period;
plus
(b) the Principal Balance of all Automobile Loans (other than
Purchased Automobile Loans) that became Liquidated Automobile
Loans during the related Collection Period;
plus
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(c) the portion of the Purchase Amount allocable to principal of
all Purchased Automobile Loans that became Purchased Automobile
Loans during the related Collection Period;
plus
(d) the aggregate amount of Cram Down Losses that shall have
occurred during the related Collection Period.
"Certificate Majority" means the holders of 66 2/3% or more of the
Certificate Balance of the outstanding Offered Certificates or, where a Class of
Offered Certificates is affected by a matter separately, 66 2/3% or more of the
Certificate Balance of the outstanding Offered Certificates of the affected
Class.
"Certificate Owner" means initially the Issuer and thereafter, with respect
to a Book-Entry Certificate, the Person who is the owner of such Book-Entry
Certificate, as reflected on the books of the Clearing Agency, or on the books
of a Person maintaining an account with such Clearing Agency (directly or as an
indirect participant, in accordance with the rules of such Clearing Agency) and
shall mean, with respect to a Definitive Certificate, the Certificateholder.
"Certificate Rate" means, with respect to (i) the Class A-1 Certificates
and each Class A-1 Interest Period, a rate per annum equal to CDOR for such
Class A-1 Interest Period plus 0.17%, (ii) the Class A-2 Certificates, 4.697%,
(iii) the Class A-3 Certificates, 5.422%, (iv) the Class B Certificates, 7.070%
and (v) the Class C Certificates, 8.344%.
"Certificate Register" has the meaning set forth in Section 7.2(a).
"Certificate Registrar" means the Custodian acting as Certificate Registrar
pursuant to this Agreement.
"Certificateholder" means the Person in whose name a Certificate is
registered in the Certificate Register. All references herein to
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Clearing Agency and the Clearing
Agency Participants, except as otherwise specified herein; provided, however,
that the parties hereto shall be required to recognize as a "Certificateholder"
only the Person in whose name a Certificate is registered in the Certificate
Register.
"Certificateholders' Certificate Balance Carryover Amount" means, as of any
Distribution Date, the excess of an amount equal to the Certificateholders'
Certificate Balance Distributable Amount for the preceding Distribution Date
over the Certificate Balance Accumulation Amount with respect to clause (i) of
such definition that were actually deposited in the Accumulation Account in
respect of the Certificate Balances of the Offered Certificates on such
preceding Distribution Date.
"Certificateholders' Certificate Balance Distributable Amount" means, for
any Distribution Date, other than the Final Scheduled Distribution Date for any
Class of Offered Certificates, the sum of the Certificateholders' Monthly
Certificate Balance Distributable Amount and the Certificateholders' Certificate
Balance Carryover Amount, if any. The
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Certificateholders' Certificate Balance Distributable Amount on the
Final Scheduled Distribution Date for any Class of Certificate will equal the
sum of:
(1) the Certificateholders' Monthly Certificate Balance
Distributable Amount for such Distribution Date;
plus
(2) the Certificateholders' Certificate Balance Carryover Amount as
of such Distribution Date;
plus
(3) the excess of the Adjusted Certificate Balance of the maturing
Class of Certificates, if any, over the amounts described in
clauses (1) and (2) above.
Notwithstanding the above, the Certificateholders' Certificate Balance
Distributable Amount shall not exceed the Adjusted Certificate Balance.
"Certificateholders' Certificate Rate Carryover Amount" means, with respect
to any Distribution Date and any Class of Offered Certificates, the sum of (a)
the difference between (i) the Certificateholders' Monthly Certificate Rate
Distributable Amount, and (ii) the amount that was actually deposited to the
Accumulation Account in respect of the Certificateholders' Certificate Rate
Distributable Amount for the Class on such preceding Distribution Date, plus (b)
the Certificateholders' Certificate Rate Carryover Amount, if any, as of the
prior Distribution Date, plus (c) an amount equal to interest on the
Certificateholders' Certificate Rate Carryover Amount for such Class of Offered
Certificates on the previous Offered Certificate Distribution Date, at the
Certificate Rate for such Class from and including the immediately preceding
Distribution Date to but excluding the current Distribution Date.
"Certificateholders' Certificate Rate Distributable Amount" means, with
respect to any Distribution Date and Class of Offered Certificates, the lesser
of (a) the sum of (i) the Certificateholders' Monthly Certificate Rate
Distributable Amount, and (ii) the Certificateholders' Certificate Rate
Carryover Amount, if any, and (b) the amount that is available to be deposited
to the Accumulation Account in respect of the Certificateholders' Certificate
Rate Distributable Amount.
"Certificateholders' Distributable Amount" means, for any Distribution
Date, the sum of the Certificateholders' Certificate Balance Distributable
Amount and the Certificateholders' Certificate Rate Distributable Amount.
"Certificateholders' Monthly Certificate Balance Distributable Amount"
means, for any Distribution Date, the lesser of:
(1) the excess of;
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(a) the Adjusted Certificate Balance less any Certificateholder's
Certificate Balance Carryover Amount before giving effect to
distributions on such date, over
(b) the Required Adjusted Certificate Balance; and
(2) the Certificate Balance Distributable Amount.
"Certificateholders' Monthly Certificate Rate Distributable Amount" means,
with respect to any Distribution Date and any Class of Offered Certificates, an
amount equal to the product of (i) the Certificate Balance of such Class as of
the close of the immediately preceding Distribution Date, (ii) the Certificate
Rate for such class, and (iii) (x) in the case of the Class A-1 Certificates, a
fraction, the numerator of which is the actual number of days from and including
the immediately preceding Distribution Date to but excluding the current
Distribution Date, and the denominator of which is 365, and (y) in the case of
the Class A-2, Class A-3, Class B and Class C Certificates, a fraction, the
numerator of which is one and the denominator of which is 12; provided, however,
that for the initial Distribution Date, the Certificateholders' Monthly
Certificate Rate Distributable Amount for the Class A-1, Class A-2, Class A-3,
Class B and Class C Certificates will be an amount equal to $68,227.40,
$202,696.40, $159,892.71, $94,788.22 and $89,495.10, respectively.
"Certificateholders' Parity Deficit Amount" means, for any Distribution
Date, the excess, if any, of:
(1) the remaining Adjusted Certificate Balance on the Distribution Date,
after giving effect to all deposits made to and including such
Distribution Date into the Accumulation Account from sources other
than the Spread Account;
minus
(2) the Pool Balance at the end of the prior calendar month.
"Certificateholders' Targeted Certificate Rate Distributable Amount" means,
with respect to any Class of Offered Certificates and any related Offered
Certificate Distribution Date, an amount equal to the sum of (a) the product of
(i) the sum of (A) the Certificate Balance of such Class as of the close of the
immediately preceding Offered Certificate Distribution Date for such Class, and
(B) the Certificateholders' Certificate Rate Carryover Amount from the prior
Offered Certificate Distribution Date, (ii) the Certificate Rate for such Class,
and (iii) (x) in the case of the Class A-1 Certificates a fraction, the
numerator of which is the actual number of days from and including the
immediately preceding Offered Certificate Distribution Date to but excluding the
current Offered Certificate Distribution Date, and the denominator of which is
365, and (y) in the case of the Class A-2, Class A-3, Class B and Class C
Certificates a fraction, the numerator of which is the number of Distribution
Dates from and including the immediately preceding Offered Certificate
Distribution Date to and excluding the current Offered Certificate Distribution
Date and the denominator of which is 12, and (b) the Certificateholders'
Certificate Rate Carryover Amount from the prior Offered Certificate
Distribution Date; provided, however, that for the initial Offered Certificate
Distribution Dates for the Class A-1, Class A-2, Class A-3, Class B and Class C
Certificates, the Certificateholders' Targeted Certificate Rate Distributable
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Amount will be an amount equal to $276,320.96, $1,783,041.19, $1,135,238.21,
$672,996.39 and $635,415.21, respectively.
"Class" means, collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numeral class designation.
"Class A Certificates" means, collectively, the Class A-1 Certificates, the
Class A-2 Certificates and the Class A-3 Certificates.
"Class A-1 Certificate" means any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto.
"Class A-1 Interest Period" means, in respect of any Class A-1 Certificate,
the period from and including one Offered Certificate Distribution Date relating
to such Offered Certificate (or in the case of the first Class A-1 Interest
Period, the Closing Date) to but excluding the next following Offered
Certificate Distribution Date relating to the Offered Certificate.
"Class A-2 Certificate" means any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto.
"Class A-3 Certificate" means any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto.
"Class B Certificate" means any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto.
"Class C Certificate" means any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto.
"Clearing Agency" shall mean an organization recognized as a "clearing
agency" pursuant to the Securities Act (Ontario).
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means May 17, 2002, or such other date as the Issuer, the
Seller and the Underwriter agree, but not later than May 31, 2002.
"Collateral Insurance" has the meaning set forth in Section 5.4(a).
"Collected Funds" means, with respect to any Collection Period, the amount
of funds in the Collection Account representing collections on the Automobile
Loans during such Collection Period, including all Net Liquidation Proceeds
collected during such Collection Period (but excluding any Purchase Amounts).
"Collection Account" means the account designated as such, established and
maintained pursuant to Section 6.1.
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"Collection Period" means, with respect to the first Distribution Date, the
period beginning on the close of business on the Cut-off Date and ending on the
close of business on May 31, 2002. With respect to each subsequent Distribution
Date, "Collection Period" means the immediately preceding calendar month. Any
amount stated "as of the close of business of the last day of a Collection
Period" shall give effect to the following calculations as determined as of the
end of the day on such last day: (i) all applications of collections and (ii)
all distributions.
"Collection Records" means all manually prepared or computer generated
records relating to collection efforts or payment histories with respect to the
Automobile Loans.
"Computer Tape" means the computer tapes or other electronic media
furnished by the Seller to the Issuer and its assigns describing certain
characteristics of the Automobile Loans as of the Cut-off Date.
"Contract" means a motor vehicle retail instalment sale contract.
"Corporate Trust Office" means, with respect to the Custodian, the
principal corporate trust office of the Custodian, which at the time of
execution of this agreement is Suite 5104, 100 King Street West, Toronto,
Ontario, M5X 1A1, Attention: Senior Trust Officer.
"Cram Down Loss" means, with respect to any Automobile Loan, if a court of
appropriate jurisdiction in a proceeding related to an Insolvency Event shall
have issued an order reducing the amount owed on the Automobile Loan or
otherwise modifying or restructuring the Scheduled Automobile Loan Payments to
be made on the Automobile Loan, an amount equal to:
(i) the excess of the principal balance of such Automobile Loan
immediately prior to such order over the Automobile Loan's Principal
Balance as so reduced; and/or
(ii) if such court shall have issued an order reducing the effective rate
of interest on such Automobile Loan, the excess of the principal
balance of such Automobile Loan immediately prior to such order over
the net present value (using as the discount rate the higher of the
average payment rate on such Automobile Loan or the rate of
interest, if any, specified by the court in such order) of the
Scheduled Automobile Loan Payments as so modified or restructured. A
"Cram Down Loss" shall be deemed to have occurred on the date of
issuance of such order.
"Custodial Accounts" has the meaning set forth in Section 6.1(b).
"Custodian" means The Trust Company of Bank of Montreal, its successor in
interest and permitted assigns, or any successor custodian appointed as herein
provided.
"Custodian Fee" means the fee payable to the Custodian for services
rendered by the Custodian in the exercise and performance of any of the powers
and duties of the Custodian hereunder.
"Custodian Liability" has the meaning set forth in Section 11.5(b).
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"Cut-off Date" means May 8, 2002.
"DBRS" means Dominion Bond Rating Service Limited, or its successors.
"Dealer" means a dealer who sold a Financed Vehicle and who originated and
assigned the respective Automobile Loan to AmeriCredit Canada under a Dealer
Agreement or pursuant to a Dealer Assignment.
"Dealer Agreement" means any agreement between a Dealer and AmeriCredit
Canada relating to the acquisition of Automobile Loans from a Dealer by
AmeriCredit Canada.
"Dealer Assignment" means, with respect to an Automobile Loan, the executed
assignment executed by a Dealer conveying such Automobile Loans to AmeriCredit
Canada.
"Deficiency Draw Amount" means, the amount, after taking into account the
application on the Distribution Date of Available Funds for the related
Collection Period, equal to the sum, without duplication, of:
(1) any shortfall on the Distribution Date in the full payment of
amounts in clauses (i) and (ii) of Section 6.4(a);
plus
(2) if the Distribution Date is an Offered Certificate Distribution
Date, the Certificateholders' Certificate Rate Carryover Amount for
such date;
plus
(3) the greater of:
(A) the Certificateholders' Parity Deficit Amount, if any, for the
Distribution Date;
and
(B) if the Distribution Date is the Final Scheduled Distribution Date
for any Class, any remaining outstanding Certificate Balance of that
Class, to the extent that the amount is available on the
Distribution Date in the Spread Account.
"Definitive Certificates" means the fully registered certificated form
certificates issued to owners of Book-Entry Certificates or their nominees in
certain circumstances.
"Depository Account" means an account maintained by the Servicer at the
Depository Bank pursuant to Section 5.2(d).
"Depository Agreement" means any agreement relating to the Depository
Account.
"Depository Bank" means a depository institution at which a Depository
Account is maintained by the Servicer.
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"Determination Date" means, with respect to any Collection Period, the
Business Day preceding the Distribution Date in the next calendar month.
"Distribution Date" means the sixth day of each month commencing June
6, 2002. If any such day is not a Business Day in Toronto, Ontario, the
"Distribution Date" shall be the next such Business Day.
"Documentary Custodian" means AmeriCredit Financial Services, Inc., in
its capacity as documentary custodian under the AmeriCredit US Custodial
Agreement, and its successors in such capacity thereunder.
"Early Termination Payment" means any early termination payment payable
by the Interest Rate Cap Counterparty pursuant to the Interest Rate Cap if the
Interest Rate Cap is terminated prior to the Final Scheduled Distribution Date
for the Class A-1 Certificates.
"Electronic Ledger" means the electronic master record of the retail
instalment sales contracts or instalment loans of the Servicer.
"Eligible Deposit Account" means either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with a corporate trust
department of a bank or trust company organized under the laws of Canada or any
one of the provinces thereof, having corporate trust powers and acting as agent
for funds deposited in such account, so long as any of the securities of such
bank or trust company have a credit rating from each Rating Agency in one of its
generic rating categories which signifies investment grade.
"Eligible Institution" means the Custodian, or any other trust company
or Schedule I chartered bank incorporated under the laws of Canada (including an
affiliate of the Custodian) or any province thereof (i) which has either (A) a
long-term unsecured debt rating of AA (low) or better by DBRS, Aa3 or better by
Moody's and AA- or better from Standard & Poor's or (B) a certificate of deposit
rating or short-term credit rating of R-1 (middle) or better by DBRS, Prime-1 or
better by Moody's and A-1+ by Standard & Poor's, or such other lower ratings as
may be acceptable to the Rating Agencies, and (ii) whose deposits are insured by
Canada Deposit Insurance Corporation or its successors;
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the Government of Canada or any agency or
instrumentality thereof the obligations of which are backed by
the full faith and credit of the Government of Canada;
(b) demand deposits, time deposits or certificates of deposit of any
chartered bank or trust company or credit union or co-operative
credit society incorporated under the laws of Canada or any
province thereof and subject to supervision and examination by
federal banking or depository institution authorities; provided,
however, that at the time of the investment or contractual
commitment to invest therein, the commercial paper or other
short-term senior unsecured debt
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obligations (other than such obligations the rating of which is
based on the credit of a Person other than such depository
institution or trust company) of such depository institution or
trust company shall have a credit rating of at least two of the
following: (i) A-1+ from Standard & Poor's, (ii) Prime-1 from
Moody's, and (iii) R-1 (high) from DBRS; provided, further,
however, that if such commercial paper or other short-term senior
unsecured debt obligations are rated by Moody's they shall have a
credit rating of at least Prime-1 from Moody's.
(c) call loans and notes or banker's acceptances issued or accepted
by any bank, trust company, credit union or co-operative credit
society described in paragraph (b) above;
(d) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating of at least
two of the following: (i) A-1+ from Standard & Poor's; (ii)
Prime-1 from Moody's, and (iii) R-1 (high) from DBRS; provided,
however, that if such commercial paper is rated by Moody's it
shall be rated at least Prime-1 by Moody';s;
(e) investments in money market funds (including funds for which the
Custodian in each of their individual capacities or any of their
respective Affiliates is investment manager, controlling party or
advisor) having a rating of at least two of the following: (i)
AAAm or AAAm-G from Standard & Poor's, (ii) Aaa from Moody's, and
(iii) AAA from DBRS; provided, however, that if such investments
are rated by Moody's they shall be rated at least Aaa by Moody's;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the Government of
Canada or any agency or instrumentality thereof the obligations
of which are backed by the full faith and credit of the
Government of Canada, in either case entered into with a bank or
trust company (acting as principal) referred to in clause (b)
above; and
(g) any other investment to which the Rating Agencies have consented.
"Event of Default" means the occurrence of either of the following
events: (i) the failure to make any Certificate Rate distribution on any Class
of Offered Certificates when the same is scheduled to be made and the
continuance of such failure for a period of five days, or (ii) the failure to
distribute the outstanding Certificate Balance of any Class of Offered
Certificates on its Final Scheduled Distribution Date.
"Final Scheduled Distribution Date" means (i) for the Class A-1
Certificates, July 7, 2003, (ii) for the Class A-2 Certificates, September 6,
2005, (iii) for the Class A-3 Certificates, October 6, 2006, (iv) for the Class
B Certificates, March 6, 2007, and (v) for the Class C Certificates, May 6,
2009.
"Financed Vehicle" means an automobile, light-duty truck, van or
minivan, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Automobile Loan.
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"Financing Statements" has the meaning set forth in Section 13.2(a).
"Force-Placed Insurance" has the meaning set forth in Section 5.4.
"Independent Accountants" has the meaning set forth in Section 5.11.
"Initial Certificate Balance" means, for the Class A-1 Certificates,
$45,000,000, for the Class A-2 Certificates, $80,750,000, for the Class A-3
Certificates, $53,966,000, for the Class B Certificates, $24,535,000, and for
the Class C Certificates, $19,628,000.
"Initial Pool Balance" means the Pool Balance as of the Cut-off Date.
"Insolvency Event" means, with respect to a specified Person, (a) the
admission by the Person that the Person is unable to pay its liabilities
generally as they become due, or (b) the making by the Person of a general
assignment for the benefit of the creditors of the Person, or (c) any other
acknowledgement by the Person of the insolvency of the Person, or (d)(i) the
institution of any proceeding by or against the Person seeking to adjudicate it
a bankrupt or insolvent or seeking liquidation, winding up, dissolution,
reorganization, arrangement, adjustment, protection, relief or composition of
its debts under any law relating to bankruptcy, insolvency, reorganization,
moratorium or relief of debtors or seeking the entry of an order for relief by
the receiver, trustee or other similar official for the Person or for any
substantial part of its property and if such proceeding has been instituted
against the Person either such proceeding has not been stayed or dismissed
within 45 days or any of the actions sought in such proceeding (including the
entry of an order for relief or the appointment of a receiver), are granted
against the Person or the property of the Person or any substantial part
thereof, or (ii) the private appointment of a receiver in respect of the Person
or of the property of the Person or any substantial part thereof.
"Insurance Add-On Amount" means the premium charged to the Obligor in
the event that the Servicer obtains Force-Placed Insurance pursuant to Section
5.4.
"Interest Rate Cap" means the Confirmation (as defined in the ISDA
Master Agreement) dated as of the Closing Date between the Interest Rate Cap
Counterparty and AmeriCredit Canada relating to an interest rate cap
transaction, as amended, modified, supplemented or restated from time to time.
"Interest Rate Cap Counterparty" means Merrill Lynch Capital Services,
Inc., and its successors and permitted assigns under the ISDA Master Agreement.
"Interest Rate Cap Guarantee" means the guarantee dated as of May 6,
2002 by Interest Rate Cap Guarantor in favour of AmeriCredit Canada in respect
of the obligations of the Interest Rate Cap Counterparty under the ISDA Master
Agreement, as amended, modified, supplemented or restated from time to time.
"Insurance Policies" has the meaning set forth in Section 5.4(a).
"Interest Rate Cap Guarantor" means Merrill Lynch & Co., Inc., and its
successors.
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"Investment Earnings" means, with respect to any date and any Custodial
Account, the interest and other investment earnings (net of losses and
investment expenses) on amounts on deposit in such Custodial Account and to be
deposited into the Collection Account on such date.
"ISDA Master Agreement" means the ISDA Master Agreement dated as of May
3, 2002 (including the Schedule thereto) between the Interest Rate Cap
Counterparty and AmeriCredit Canada, as amended, modified, supplemented or
restated from time to time.
"Issuer" means Merrill Lynch Financial Assets Inc., and its successors.
"Lien" means a security interest, lien, charge, pledge, equity, or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach to the respective Automobile Loan by operation of law as a result of
any act or omission by the related Obligor.
"Liquidated Automobile Loan" means, with respect to any Collection
Period, an Automobile Loan for which, as of the last day of such Collection
Period (i) 90 days have elapsed since the Servicer repossessed the Financed
Vehicle; provided, however, that in no case shall $30 or more of a Scheduled
Automobile Loan Payment have become 210 or more days delinquent in the case of a
repossessed Financed Vehicle; (ii) the Servicer has determined in good faith
that it has received all amounts it expects to recover; or (iii) $30 or more of
a Scheduled Automobile Loan Payment has become 120 or more days delinquent,
except in the case of a repossessed Financed Vehicle.
"Maturity Advance" means any advance made by the Servicer pursuant to
Section 6.3(d).
"Monthly Records" means all records and data maintained by the Servicer
with respect to the Automobile Loans, including the following with respect to
each Automobile Loans: the account number; the originating Dealer; Obligor name;
Obligor address; Obligor home phone number; Obligor business phone number;
original Principal Balance; original term; Annual Percentage Rate; current
Principal Balance; current remaining term; origination date; first payment date;
final scheduled payment date; next payment due date; date of most recent
payment; new/used classification; collateral description; days currently
delinquent; number of contract extensions (months) to date; amount of Scheduled
Automobile Loan Payment; current Insurance Policy expiration date; and past due
late charges.
"Moody's" means Moody's Investors Service Inc., or its successor.
"Net Liquidation Proceeds" means, with respect to a Liquidated
Automobile Loan, (1) proceeds from the underlying Financed Vehicles'
disposition; plus (2) any insurance proceeds; plus (3) other monies received
from the Obligor that are allocable to principal and interest due under the
Automobile Loan; minus (4) the Servicer's reasonable out-of-pocket costs,
including repossession and resale expenses not already deducted from any
proceeds of disposition or collections, in connection with the collection of
such Automobile Loan and any amounts that are required to be remitted to the
Obligor by law; provided, however, that Net Liquidation Proceeds shall in no
event be less than zero.
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"Obligor" means, in respect of an Automobile Loan, the purchaser or
co-purchasers of the related Financed Vehicle and any other Person who owes
payments under the Automobile Loan.
"Offered Certificate Distribution Date" means (i) the Distribution Date
in each of August, November, February and May of each year in the case of the
Class A-1 Certificates, (ii) the Distribution Date in November and May of each
year in the case of the Class A-2 Certificates, (iii) the Distribution Dates in
October and April of each year in the case of the Class A-3, Class B and Class C
Certificates and (iv) with respect to any Class of Offered Certificates, the
date on which the Certificate Balance is reduced to zero pursuant to exercise of
the "optional purchase" of the Servicer under Error! Reference source not found.
and the payments made from the Accumulation Account after the Pool Balance has
been reduced to zero. If the Certificate Balance for any Class of Offered
Certificates is not distributed in full on its Targeted Certificate Balance
Distribution Date or an Event of Default occurs, the Offered Certificate
Distribution Date for such Class shall be each Distribution Date thereafter
until the Certificate Balance for such class is reduced to zero. The first
Offered Certificate Distribution Date shall be (i) August 6, 2002 in the case of
the Class A-1 Certificates, (ii) November 6, 2002 in the case of the Class A-2
Certificates and (iii) October 6, 2002 in the case of the Class A-3, Class B and
Class C Certificates.
"Offered Certificates" means the Class A-1, Class A-2, Class A-3, Class
B and Class C Certificates.
"Officers' Certificate" means a certificate signed by the chairman of
the board, the president, any executive vice president or any vice president,
any treasurer, assistant treasurer, secretary or assistant secretary of the
Seller or the Servicer, as appropriate.
"Opinion of Counsel" means a written opinion of counsel, which is in
form and substance acceptable to the Custodian and the Rating Agencies, each
acting reasonably.
"Optional Purchase Price" has the meaning set forth in Section 12.2(a).
"Ownership Interest" means, as to any Certificate, any ownership
interest in such Certificate as the Certificateholder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Percentage Interest" means, with respect to any Certificate, a
percentage, the numerator of which is the initial balance of such Certificate as
of the Closing Date, as specified on the face thereof, and the denominator of
which is the Initial Certificate Balance of the relevant Class.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Pool Balance" means, as of any date the aggregate Principal Balance of
the Automobile Loans, excluding all Liquidated Automobile Loans and all
Purchased Automobile Loans, at the end of the preceding calendar month.
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"PPSA" means, in respect of each province or territory of Canada (other
than Quebec), the Personal Property Security Act, as from time to time in effect
in such province or territory and, in respect of Quebec, the Civil Code of
Quebec, as from time to time in effect in such province.
"Principal Balance" means, with respect to any Automobile Loan, as of
any date, the sum of (x) the Amount Financed, minus (i) that portion of all
amounts received on or prior to such date and allocable to principal in
accordance with the terms of the Automobile Loan, minus (ii) any Cram Down Loss
in respect of such Automobile Loan accounted for as at that date, plus (y) the
unpaid interest that has been capitalized on such Automobile Loan and added to
the loan balance as at that date.
"Purchase Agreement" means the purchase agreement dated as of the
Closing Date between AmeriCredit Canada and the Seller, as amended, modified,
supplemented or restated from time to time.
"Purchase Amount" means, with respect to a Purchased Automobile Loan,
the Principal Balance as of the date of purchase.
"Purchased Assets" has the meaning set forth in Section 2.1.
"Purchased Automobile Loan" means an Automobile Loan purchased as of
the close of business on the last day of a Collection Period by the Servicer
pursuant to Section 5.7 or Section 12.2 or repurchased by AmeriCredit Canada
pursuant to Section 3.2.
"Rating Agency" means each of Moody's, Standard & Poor's and DBRS and,
collectively, the "Rating Agencies". If no such organization or successor
maintains a rating on the Certificates, "Rating Agency" shall be a nationally
recognized statistical rating organization or other comparable Person designated
by the Servicer and acceptable to the Custodian, acting reasonably, notice of
which designation shall be given to the Custodian.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' (or such shorter period as shall be
acceptable to each Rating Agency) prior notice thereof and that each of the
Rating Agencies shall have notified the Seller, the Issuer, the Servicer and the
Custodian in writing that such action will not result in a reduction or
withdrawal of the then current rating of any Class of Certificates.
"Record Date" means, with respect to each Distribution Date, the close
of business on the Business Day immediately preceding such Distribution Date.
"Required Adjusted Certificate Balance" means, for any Distribution
Date, the amount equal to the sum of:
(a) the product of:
(1) the Pool Balance as of the end of the prior calendar month, and
(2) 100% minus the Required Overcollateralization Percentage;
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plus
(b) if such Distribution Date is on or prior to the date on which the
"optional repurchase" can be exercised by the Servicer, the
Spread Account balance on such Distribution Date (prior to giving
effect to any deposits thereto or withdrawals therefrom).
Notwithstanding anything to the contrary in this defined term, the
Required Adjusted Certificate Balance shall never be greater than the Pool
Balance at any time.
"Required Overcollateralization Percentage" means a percentage equal to
(i) 19% of the outstanding Pool Balance less (ii) the Spread Account balance,
divided by the Pool Balance. On any Distribution Date on which the Adjusted
Certificate Balance, as of the prior Distribution Date, is less than or equal to
10% of the initial Adjusted Certificate Balance, the Required
Overcollateralization Percentage equals 100%.
"Residual Certificate" means a Certificate designated as a "Class R"
Certificate on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing the residual interests in the ACAR Series 2002-A
Certificateholders' Assets.
"Responsible Officer" means, with respect to any Person, the chairman
or vice-chairman of the board of directors, any managing director, the chairman
or vice-chairman of the executive committee of the board of directors, the chief
executive officer, the president, any vice president, assistant vice president,
the secretary, any assistant secretary, the treasurer, any assistant treasurer,
or any other officer of such person customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Schedule of Automobile Loans" means the schedule (which schedule may
be in the form of microfiche or a disk) of all motor vehicle retail instalment
sales contracts originally sold by the Seller to the Issuer on the Closing Date
to be held as part of the ACAR 2002-A Certificateholder's Assets pursuant to
this Agreement, which is attached as Schedule A.
"Schedule of Representations" means the Schedule of Representations and
Warranties attached hereto as Schedule B.
"Scheduled Automobile Loan Payment" means, with respect to any
Collection Period for any Automobile Loan, the amount set forth in such
Automobile Loan as required to be paid by the Obligor in such Collection Period.
If after the Closing Date, the Obligor's obligation under an Automobile Loan
with respect to a Collection Period has been modified so as to differ from the
amount specified in such Automobile Loan as a result of (i) the order of a court
in an insolvency proceeding involving the Obligor, or (ii) modifications or
extensions of the Automobile Loan permitted by Section 5.2(b), the Scheduled
Automobile Loan Payment with respect to such Collection Period shall refer to
the Obligor's payment obligation with respect to such Collection Period as so
modified.
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"Seller" means AmeriCredit Canada 2002-A Corp., a corporation
incorporated under the federal laws of Canada, and its successors in interest to
the extent permitted hereunder.
"Seller Assignment" means the assignment dated as of the Closing Date
from the Seller to the Issuer.
"Service Contract" means, with respect to a Financed Vehicle, the
agreement, if any, financed under the related Automobile Loan that provides for
the repair of such Financed Vehicle.
"Servicer" means AmeriCredit Canada, as the servicer of the Automobile
Loans, and each successor Servicer pursuant to Section 10.3.
"Servicer Termination Event" means an event specified in Section 10.1.
"Servicer's Certificate" means an Officers' Certificate of the Servicer
delivered pursuant to Section 5.9, substantially
in the form of Exhibit B.
"Servicing Fee" has the meaning set forth in Section 5.8.
"Servicing Fee Rate" means 2.25% per annum.
"Simple Interest Method" means the method of allocating a fixed level
payment on an obligation between principal and interest, pursuant to which the
portion of such payment that is allocated to interest is equal to the product of
the fixed rate of interest on such obligation multiplied by the period of time
(expressed as a fraction of a year, based on the actual number of days in the
calendar month and 365 days in the calendar year) elapsed since the preceding
payment under the obligation was made.
"Spread Account" means the account designated as such, established and
maintained pursuant to Section 6.1.
"Standard & Poor's" means Standard & Poor's Rating Service, a division
of The McGraw-Hill Companies, Inc., or its successor.
"Statistical Calculation Date" means April 28, 2002.
"Subordinated Certificate" means a Class B, Class C or Residual
Certificate.
"Targeted Certificate Balance Distribution Date" means, for the Class
A-1 Certificates, November 6, 2002, for the Class A-2 Certificates, May 6, 2004,
for the Class A-3 Certificates, October 6, 2005, for the Class B Certificates,
October 6, 2005, and for the Class C Certificates, October 6, 2005.
"Voting Rights" means the voting rights for the Certificates.
"Underwriter" means Merrill Lynch Canada Inc. and its successors.
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1.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any instrument governed hereby and in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein.
(b) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(c) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(e) Except as otherwise specifically provided herein, all monetary
amounts in this Agreement are stated in lawful money of Canada.
ARTICLE 2
CONVEYANCE OF PURCHASED ASSETS
2.1 Conveyance of Purchased Assets.
In consideration of the Issuer's delivery to or upon the order of the
Seller on the Closing Date of (i) $223,879,000 (less the amount deposited by the
Issuer to Spread Account pursuant to Section 6.1(a)(iii)), and (ii) the Residual
Certificate, the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Issuer, without recourse (subject to the obligations set
forth herein) (and on a fully serviced basis as provided herein and in the
Purchase Agreement), all right, title and interest of the Seller in and to the
following assets (collectively, the "Purchased Assets"):
(a) the Automobile Loans and all collections received thereon after
the Cut-off Date;
(b) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Automobile Loans and any other interest
of the Seller in such Financed Vehicles;
(c) any proceeds and the right to receive proceeds with respect to
the Automobile Loans from claims on any physical damage, credit
life or disability insurance policies covering Financed Vehicles
or Obligors and any proceeds from the liquidation of the
Automobile Loans;
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(d) any proceeds from any Automobile Loan repurchased by a Dealer
pursuant to a Dealer Agreement as a result of a breach of
representation or warranty in the related Dealer Agreement;
(e) the Automobile Loan Files;
(f) all proceeds of payments made by the Interest Rate Cap
Counterparty pursuant to the Interest Rate Cap (other than any
Early Termination Payments);
(g) all proceeds of payments made by the Interest Rate Cap Guarantor
pursuant to the Interest Rate Cap Guarantee (except to the extent
such proceeds relate to Early Termination Payments);
(h) all of the right, title and interest of the Seller in and to the
Purchase Agreement (including, without limitation, all of the
Seller's rights against AmeriCredit Canada under the Purchase
Agreement in respect of breaches of representations and
warranties made by AmeriCredit Canada under the Purchase
Agreement); and
(i) the proceeds of any and all of the foregoing.
It is the intention of the Seller that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Purchased Assets
from the Seller to the Issuer and the beneficial interest in and title to the
Purchased Assets shall not be part of the Seller's estate in the event of the
filing of a bankruptcy or insolvency petition or proceeding by or against the
Seller under any bankruptcy or insolvency law.
2.2 Conveyance of Automobile Loans to Custodian and Creation of
Co-Ownership Interests.
(a) Forthwith upon the closing of the sale by the Seller to the
Issuer pursuant to Section 2.1 on the Closing Date, the Issuer,
on the direction of each Person who has agreed to acquire a
Certificate, hereby sells, assigns, transfers, sets over, conveys
and delivers to, and deposits with, the Custodian, all of the
right, title and interest of the Issuer in, to and under the
Purchased Assets. The Custodian shall thereafter hold the ACAR
Series 2002-A Certificateholders' Assets as agent, nominee and
bailee, and so far as same is required for the purposes of the
laws of the Province of Quebec, as holder of power of attorney
(fonde de pouvoir) within the meaning of Article 2692 of the
Civil Code of Quebec, for the benefit of the Certificateholders,
all of whom appoint the Custodian to so act.
(b) The Custodian agrees to act as the agent, nominee and bailee for
the Certificateholders pursuant to the terms of this Agreement,
and to perform the functions and services and exercise the
authority conferred on it by the Certificateholders pursuant to
this Agreement. Subject to the terms and conditions hereof, the
Custodian hereby acknowledges its acceptance of, as agent,
nominee and bailee, and holder of power of attorney (fonde de
pouvoir), for and on behalf of the Certificateholders, the sale,
assignment, transfer, conveyance,
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delivery and deposit of all of the Issuer's present and future
right, title and interest in, to and under the Purchased Assets.
2.3 Representations and Warranties of Issuer.
The Issuer hereby represents and warrants to the Custodian, for its own
benefit and the benefit of the Certificateholders, and to the Backup Servicer,
as of the Closing Date (which representations and warranties shall not merge on,
but shall survive, the Closing Date), that:
(a) The Issuer is a corporation duly organized, validly existing and
in good standing under the laws of Canada and possesses all
licenses and authorizations necessary to carry out the
transactions of the Issuer contemplated by this Agreement.
(b) The execution and delivery of this Agreement by the Issuer, and
the performance and compliance with the terms of this Agreement
by the Issuer, does not and will not violate the Issuer's
articles of incorporation or by-laws or constitute a default (or
an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets, the default or
breach of which, in the Issuer's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Issuer to perform its obligations under this
Agreement or the financial condition of the Issuer.
(c) No consent, approval or authorization of or designation,
declaration, notice or filing with any governmental authority,
corporation, person or firm on the part of the Issuer is required
in connection with the valid execution and delivery of this
Agreement or the consummation of any other transactions of the
Issuer contemplated hereby other than a consent, approval,
authorization, designation, declaration, notice or filing which
has been obtained, made or given.
(d) The Issuer has the full power and authority to carry on its
business as now being conducted and to enter into and consummate
all transactions of the Issuer contemplated by this Agreement,
has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this
Agreement.
(e) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a
valid, legal and binding obligation of the Issuer, enforceable
against the Issuer in accordance with the terms hereof, subject
to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(f) The Issuer is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the
terms of this Agreement does not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, provincial or local
governmental
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or regulatory authority, which violation, in the Issuer's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Issuer to perform its obligations under this
Agreement or the financial condition of the Issuer.
(g) The creation of the co-ownership interests in the Purchased Assets in
favour of the Certificateholders as contemplated herein requires no
regulatory approval, other than any such approvals as have been
obtained, and is not subject to any bulk sales or similar legislation
in effect in any applicable jurisdiction.
(h) No litigation is pending or, to the best of the Issuer's knowledge,
threatened against the Issuer that, if determined adversely to the
Issuer, would prohibit the Issuer from entering into this Agreement
or, in the Issuer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Issuer to
perform its obligations under this Agreement or the financial
condition of the Issuer.
(i) Immediately prior to the transfer of the Purchased Assets by the
Issuer to the Custodian and the creation of the co-ownership interests
in the Purchased Assets in favour of the Certificateholders pursuant
to this Agreement, the Issuer is the sole beneficial owner of the
Purchased Assets free and clear of all encumbrances and has full right
and authority to sell, assign and transfer its right, title and
interest in the Purchased Assets.
(j) The Issuer is transferring its right, title and interest in, to and
under the Purchased Assets to the Custodian for the benefit of the
Certificateholders free and clear of any liens, pledges, charges and
security interests created by it or attributable to its ownership.
(k) The Issuer will in its financial statements treat (i) the transfer to
it of the Seller's interest in the Purchased Assets as a sale of the
Purchased Assets to the Issuer, and (ii) the transfer by the Issuer to
the Certificateholders as co-owners of the beneficial interest in the
Purchased Assets as a sale of the Purchased Assets to the
Certificateholders. The consideration received by the Issuer upon such
sale will constitute the fair market value of the Purchased Assets.
The Issuer will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Purchased Assets to the
Certificateholders. The Issuer is not selling the Purchased Assets to
the Certificateholders with any intent to hinder, delay or defraud any
of the creditors of the Issuer.
The representations and warranties of the Issuer set forth in this Section
2.3 shall survive the execution and delivery of this Agreement and shall inure
to the benefit of the Persons for whose benefit they were made for so long as
the ACAR Series 2002-A Certificateholders' Assets remain in existence. Upon
discovery by any party hereto of any breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties and to the Rating Agencies.
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ARTICLE 3
THE AUTOMOBILE LOANS
3.1 Additional Representations and Warranties of Seller.
The Seller hereby represents and warrants that each of the representations
and warranties set forth on the Schedule of Representations attached hereto as
Schedule B on which the Issuer is deemed to have relied in acquiring the
Purchased Assets is true and correct. Such representations and warranties speak
as of the execution and delivery of this Agreement and as of the Closing Date in
the case of the Purchased Assets, but shall survive the sale, transfer and
assignment of the Purchased Assets by the Seller to the Issuer and by the Issuer
to the Custodian pursuant to this Agreement.
3.2 Repurchase upon Breach.
(a) The Seller, the Servicer or the Custodian, as the case may be, shall
inform the other parties to this Agreement promptly, by notice in writing, upon
the discovery of any breach of the Seller's representations and warranties made
pursuant to Section 3.1. As of the last day of the second (or, if the Seller so
elects, the first) month following the discovery by the Seller or receipt by the
Seller of notice of such breach, unless such breach is cured by such date,
AmeriCredit Canada shall have an obligation to repurchase any Automobile Loan in
which the interests of the Certificateholders are materially and adversely
affected by any such breach as of such date. The "second month" shall mean the
month following the month in which discovery occurs or notice is given, and the
"first month" shall mean the month in which discovery occurs or notice is given.
In consideration of and simultaneously with the repurchase of the Automobile
Loan, (i) the Seller shall remit, or cause AmeriCredit Canada to remit, to the
Collection Account the Purchase Amount, in the manner specified in Section
6.3(b); provided, however, that the obligation of the Seller to repurchase any
Automobile Loan arising solely as a result of a breach of AmeriCredit Canada's
representations and warranties pursuant to the Purchase Agreement is subject to
the receipt by the Seller of the Purchase Amount from AmeriCredit Canada, and
(ii) the Issuer shall execute such assignments and other documents reasonably
requested by such person in order to effect such repurchase. The sole remedy of
the Issuer, the Custodian, or the Certificateholders with respect to a breach of
representations and warranties pursuant to Section 3.1 and the agreement
contained in this Section shall be to require AmeriCredit Canada to repurchase
Automobile Loans pursuant to this Section, subject to the conditions contained
herein, and to enforce AmeriCredit Canada's obligation to the Seller to
repurchase such Automobile Loans pursuant to the Purchase Agreement. The
Custodian shall not have a duty to conduct any affirmative investigation as to
the occurrence of any conditions requiring the repurchase of any Automobile Loan
pursuant to this Section.
In addition to the foregoing and notwithstanding whether the related
Automobile Loan shall have been purchased by AmeriCredit Canada, AmeriCredit
Canada shall indemnify the Servicer, the Backup Servicer, the Custodian and the
officers, directors, agents and employees thereof and the Certificateholders
against all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, which may be asserted against or
incurred by any of them as a result of third party claims arising out of the
events or facts giving rise to such breach.
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ARTICLE 4
CUSTODY OF AUTOMOBILE LOAN FILES
4.1 Custody of Automobile Loan Files.
(a) On the Closing Date, the Custodian shall enter into the AmeriCredit US
Custodial Agreement.
(b) The Documentary Custodian (in accordance with the terms of the
AmeriCredit US Custodial Agreement) shall act as custodian on behalf of the
Custodian of the following documents or instruments pertaining to each
Automobile Loan:
(i) The fully executed original of the Automobile Loan (together
with any agreements modifying the Automobile Loan, including,
without limitation, any extension agreements); and
(ii) The original credit application, or a copy thereof, of each
Obligor, fully executed by each such Obligor on customary
form, or on a form approved by the Seller, for such
application.
ARTICLE 5
ADMINISTRATION AND SERVICING OF AUTOMOBILE LOANS
5.1 Duties of the Servicer.
(a) The Servicer is hereby authorized to act as agent for the Custodian
and the Certificateholders and in such capacity shall manage, service,
administer and make collections on the Automobile Loans, and perform the other
actions required by the Servicer under this Agreement. The Servicer agrees that
its servicing of the Automobile Loans shall be carried out in accordance with
customary and usual procedures of institutions which service motor vehicle
retail instalment sales contracts and, to the extent more exacting, the degree
of skill and attention that the Servicer exercises from time to time with
respect to all comparable motor vehicle receivables that it services for itself
or others. In performing such duties, so long as AmeriCredit Canada is the
Servicer, it shall substantially comply with the policies and procedures
described on Schedule C, as such policies and procedures may be updated from
time to time. The Servicer's duties shall include, without limitation,
collection and posting of all payments, responding to inquiries of Obligors
regarding the Automobile Loans, investigating delinquencies, sending payment
coupons to Obligors, reporting any required tax information to Obligors, paying
the disposition costs of default accounts, monitoring the collateral, complying
with the terms of the Depository Agreement, accounting for collections and
furnishing monthly and annual statements to the Issuer with respect to
distributions, monitoring the status of Insurance Policies with respect to the
Financed Vehicles and performing the other duties specified herein.
(b) The Servicer shall also administer and enforce all rights and
responsibilities of the holder of the Automobile Loans provided for in the
Dealer Agreements (and shall maintain possession of the Dealer Agreements to the
extent it is necessary to do so), the Dealer Assignments and the Insurance
Policies, to the extent that such Dealer Agreements, Dealer
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Assignments and Insurance Policies relate to the Automobile Loans, the Financed
Vehicles or the Obligors. To the extent consistent with the standards, policies
and procedures otherwise required hereby, the Servicer shall follow its
customary standards, policies, and procedures and shall have full power and
authority, acting alone, to do any and all things in connection with such
managing, servicing, administration and collection that it may deem necessary or
desirable. Without limiting the generality of the foregoing, the Servicer is
hereby authorized and empowered by the Custodian to execute and deliver, on
behalf of the Custodian and the Certificateholders, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Automobile Loans and with
respect to the Financed Vehicles; provided, however, that notwithstanding the
foregoing, the Servicer shall not, except pursuant to an order from a court of
competent jurisdiction, release an Obligor from payment of any unpaid amount
under any Automobile Loan or waive the right to collect the unpaid balance of
any Automobile Loan from the Obligor except in accordance with the Servicer's
customary practices.
(c) The Servicer is hereby authorized to commence, in its own name or in
the name of the Custodian, a legal proceeding to enforce an Automobile Loan
pursuant to Section 5.3 or to commence or participate in any other legal
proceeding (including, without limitation, a bankruptcy proceeding) relating to
or involving an Automobile Loan, an Obligor or a Financed Vehicle. If the
Servicer commences or participates in such a legal proceeding in its own name,
the Custodian shall thereupon be deemed to have automatically assigned such
Automobile Loan to the Servicer solely for purposes of commencing or
participating in any such proceeding as a party or claimant, and the Servicer is
authorized and empowered by the Custodian to execute and deliver in the
Servicer's name any notices, demands, claims, complaints, responses, affidavits
or other documents or instruments in connection with any such proceeding. The
Custodian shall furnish the Servicer with any limited powers of attorney and
other documents which the Servicer may reasonably request and which the Servicer
deems necessary or appropriate and take any other steps which the Servicer may
deem necessary or appropriate to enable the Servicer to carry out its servicing
and administrative duties under this Agreement.
5.2 Collection of Automobile Loan Payments; Modifications of Automobile Loans;
Depository Agreements.
(a) Consistent with the standards, policies and procedures required by
this Agreement, the Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Automobile Loans as
and when the same shall become due, and shall follow such collection procedures
as it follows with respect to all comparable automobile loans that it services
for itself or others and otherwise act with respect to the Purchased Assets, the
Dealer Agreements, the Dealer Assignments and the Insurance Policies in such
manner as will, in the reasonable judgment of the Servicer, maximize the amount
to be received by the Custodian with respect thereto. The Servicer is authorized
in its discretion to waive any prepayment charge, late payment charge or any
other similar fees that may be collected in the ordinary course of servicing any
Automobile Loan.
(b) The Servicer may at any time agree to a modification or amendment of
an Automobile Loan in order to (i) change the Obligor's regular due date to a
date within the Collection Period in which such due date occurs or (ii)
re-amortize the Scheduled Automobile
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Loan Payments on the Automobile Loan following a partial prepayment of
principal, in accordance with its customary procedures if the Servicer believes
in good faith that such extension, modification or amendment is necessary to
avoid a default on such Automobile Loan, will maximize the amount to be received
by the Issuer with respect to such Automobile Loan, and is otherwise in the best
interests of the Issuer.
(c) The Servicer may grant payment extensions on, or other modifications
or amendments to, an Automobile Loan (in addition to those modifications
permitted by Section 5.2(b)) in accordance with its customary procedures if the
Servicer believes in good faith that such extension, modification or amendment
is necessary to avoid a default on such Automobile Loan, will maximize the
amount to be received by the Custodian on behalf of the Certificateholders with
respect to such Automobile Loan, and is otherwise in the best interests of the
Certificateholders; provided, however, that:
(i) The aggregate period of all extensions on an Automobile Loan
shall not exceed eight months;
(ii) In no event may an Automobile Loan be extended beyond the
Collection Period immediately preceding the latest Final
Scheduled Distribution Date; and
(iii) the Servicer shall not amend or modify an Automobile Loan
(except as provided in Section 5.2(b) and this Section
5.2(c)) without the consent of a Certificate Majority.
(d) The Servicer shall maintain the following system for collecting and
processing payments on the Automobile Loans and the other motor vehicle retail
instalment sale contracts or security agreements owned or serviced by the
Servicer or AmeriCredit Canada. The Servicer shall establish and maintain one or
more segregated deposit accounts (collectively, the "Depository Account") at the
Depository Bank. The Depository Account shall be maintained by the Servicer for
and on behalf of AmeriCredit Canada, the Custodian and each other owner of motor
vehicle retail instalment sale contracts or security agreements originated and
owned or serviced by the Servicer or AmeriCredit Canada. The Servicer shall use
its best efforts to notify or direct Obligors to make all cheque or other mail
payments on the Automobile Loans directly to the Depository Account and all
direct debit payments on the Automobile Loans to the Depository Account. The
Servicer shall not permit any payments other than payments on the Automobile
Loans and other motor vehicle retail instalment sale contracts or security
agreements originated and owned or serviced by the Servicer or AmeriCredit
Canada to be made to the Depository Account. The Servicer shall use its best
efforts to notify or direct the Depository Bank to deposit all payments on the
Automobile Loans in the Depository Account no later than the Business Day after
receipt, and to cause all amounts credited to the Depository Account on account
of such payments to be transferred to the Depository Account no later than the
second Business Day after receipt of such payments. The Servicer shall cause all
amounts credited to the Depository Account on account of payments on the
Automobile Loans to be transferred to the Collection Account no later than the
second Business Day after receipt of such payments in the Depository Account.
The Depository Account shall be a demand deposit account held by the Depository
Bank, and shall be an Eligible Deposit Account. The Servicer may at any time
move
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the Depository Account to another Eligible Deposit Account provided the Servicer
shall give the Custodian and the Backup Servicer written notice of such new
Depository Account.
Prior to the Closing Date, the Servicer shall have notified each Obligor
that makes its payments on the Automobile Loans by cheque and to make such
payments thereafter directly to the Depository Bank (except in the case of
Obligors that have already been making such payments to the Depository Bank),
and shall have provided each such Obligor with remittance invoices in order to
enable such Obligors to make such payments directly to the Depository Bank for
deposit into the Depository Account, and the Seller will continue, not less
often than every three months, to so notify those Obligors who have failed to
make payments to the Depository Bank. The Servicer shall request each Obligor
that makes payment on the Automobile Loans by direct debit of such Obligor's
bank account, to execute a new authorization for automatic payment sufficient to
authorize direct debit by the Depository Bank. If at any time, the Depository
Bank is unable to directly debit an Obligor's bank account that makes payment on
the Automobile Loans by direct debit and if such inability is not cured within
15 days or cannot be cured by execution by the Obligor of a new authorization
for automatic payment, the Servicer shall notify such Obligor that it cannot
make payment by direct debit and must thereafter make payment by cheque.
In the event of a termination of the Servicer, the successor Servicer shall
establish a new Depository Account or similar collection processing system in
accordance with and subject to the terms hereof. The outgoing Servicer shall,
upon request of the Custodian, but at the expense of the outgoing Servicer,
deliver to the successor Servicer all documents and records relating to each
such Depository Account and an accounting of amounts collected and held by the
Depository Bank and otherwise use its best efforts to effect the orderly and
efficient transfer of any Depository Account to the successor Servicer.
(e) The Servicer shall deposit all payments by or on behalf of the
Obligors received directly by the Servicer to the Depository Bank without
deposit into any intervening account and as soon as practicable, but in no event
later than three Business Days after receipt thereof.
5.3 Realization upon Automobile Loans.
(a) Consistent with the standards, policies and procedures required by
this Agreement, the Servicer shall use its best efforts to repossess (or
otherwise comparably convert the ownership of) and liquidate any Financed
Vehicle securing an Automobile Loan with respect to which the Servicer has
determined that payments thereunder are not likely to be resumed, as soon as is
practicable after default on such Automobile Loan but in no event later than the
date on which all or any portion of a Scheduled Automobile Loan Payment has
become 91 days delinquent; provided, however, that the Servicer may elect not to
repossess a Financed Vehicle within such time period if in its good faith
judgment it determines that the proceeds ultimately recoverable with respect to
such Automobile Loan would be increased by forbearance. The Servicer is
authorized to follow such customary practices and procedures as it shall deem
necessary or advisable, consistent with the standard of care required by Section
5.1, which practices and procedures may include reasonable efforts to realize
upon any recourse to Dealers, the sale of the related Financed Vehicle at a
public or private sale, the submission of claims under an insurance policy and
other actions by the Servicer in order to realize upon such an
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Automobile Loan. The foregoing is subject to the provision that, in any case in
which the Financed Vehicle shall have suffered damage, the Servicer shall not
expend funds in connection with any repair or towards the repossession of such
Financed Vehicle unless it shall determine in its discretion that such repair
and/or repossession shall increase the proceeds of liquidation of the related
Automobile Loan by an amount greater than the amount of such expenses. All
amounts received upon liquidation of a Financed Vehicle shall be remitted
directly by the Servicer to the Collection Account without deposit into any
intervening account as soon as practicable, but in no event later than the
Business Day after receipt thereof. The Servicer shall be entitled to recover
all reasonable expenses incurred by it in the course of repossessing and
liquidating a Financed Vehicle into cash proceeds, but only out of the cash
proceeds of such Financed Vehicle, any deficiency obtained from the Obligor or
any amounts received from the related Dealer, which amounts in reimbursement may
be retained by the Servicer (and shall not be required to be deposited as
provided in Section 5.2(e)) to the extent of such expenses. The Servicer shall
collect and remit on behalf of the Custodian and the Certificateholders any
sales, goods and services and other applicable taxes payable in connection with
any realization in respect of any repossessed Financed Vehicles.
(b) If the Servicer elects to commence a legal proceeding to enforce a
Dealer Agreement or Dealer Assignment the act of commencement shall be deemed to
be an automatic assignment from the Custodian and the Certificateholders to the
Servicer of the rights under such Dealer Agreement or Dealer Assignment for
purposes of collection only. If, however, in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce a Dealer Agreement or
Dealer Assignment on the grounds that it is not a real party in interest or a
Person entitled to enforce the Dealer Agreement or Dealer Assignment, the Issuer
or the Custodian, at the Servicer's expense, or the Seller, at the Seller's
expense, shall take such steps as the Servicer deems reasonably necessary to
enforce the Dealer Agreement or Dealer Assignment, including bringing suit in
its name or the name of the Seller or of the Issuer and/or the Custodian for the
benefit of the Certificateholders. All amounts recovered shall be remitted
directly by the Servicer as provided in Section 5.2(e).
5.4 Insurance.
(a) The Servicer shall require, in accordance with its customary servicing
policies and procedures, that each Financed Vehicle be insured by the related
Obligor under the insurance policies (the "Insurance Policies") referred to in
Paragraph 24 of the Schedule of Representations and Warranties and shall monitor
the status of such physical loss and damage insurance coverage thereafter, in
accordance with its customary servicing procedures. Each Automobile Loan
requires the Obligor to maintain such physical loss and damage insurance, naming
AmeriCredit Canada and its successors and assigns as additional insureds, and
permits the holder of such Automobile Loan to obtain physical loss and damage
insurance at the expense of the Obligor if the Obligor fails to maintain such
insurance. If the Servicer shall determine that an Obligor has failed to obtain
or maintain a physical loss and damage Insurance Policy covering the related
Financed Vehicle which satisfies the conditions set forth in clause (i)(a) of
such Paragraph 24 (including, without limitation, during the repossession of
such Financed Vehicle) the Servicer may enforce the rights of the holder of the
Automobile Loan under the Automobile Loan to require the Obligor to obtain such
physical loss and damage insurance in accordance with its customary servicing
policies and procedures. The Servicer may maintain a vendor's single
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interest or other collateral protection Insurance Policy with respect to all
Financed Vehicles ("Collateral Insurance") which policy shall by its terms
insure against physical loss and damage in the event any Obligor fails to
maintain physical loss and damage insurance with respect to the related Financed
Vehicle. All policies of Collateral Insurance shall be endorsed with clauses
providing for loss payable to the Servicer. Costs incurred by the Servicer in
maintaining such Collateral Insurance shall be paid by the Servicer.
(b) The Servicer may, if an Obligor fails to obtain or maintain a physical
loss and damage Insurance Policy, obtain insurance with respect to the related
Financed Vehicle and advance on behalf of such Obligor, as required under the
terms of the Insurance Policy, the premiums for such insurance (such insurance
being referred to herein as "Force-Placed Insurance"). All policies of
Force-Placed Insurance shall be endorsed with clauses providing for loss payable
to the Servicer. Any cost incurred by the Servicer in maintaining such
Force-Placed Insurance shall only be recoverable out of premiums paid by the
Obligors or Net Liquidation Proceeds with respect to the Automobile Loan, as
provided in Section 5.4(c).
(c) In connection with any Force-Placed Insurance obtained hereunder, the
Servicer may, in the manner and to the extent permitted by applicable law,
require the Obligors to repay the entire premium to the Servicer. In no event
shall the Servicer include the amount of the premium in the Amount Financed
under the Automobile Loan. For all purposes of this Agreement, the Insurance
Add-On Amount with respect to any Automobile Loan having Force-Placed Insurance
will be treated as a separate obligation of the Obligor and will not be added to
the Principal Balance of such Automobile Loan, and amounts allocable thereto
will not be available for distribution on the Certificates. The Servicer shall
retain and separately administer the right to receive payments from Obligors
with respect to Insurance Add-On Amounts or rebates of Forced-Placed Insurance
premiums. If an Obligor makes a payment with respect to an Automobile Loan
having Force-Placed Insurance, but the Servicer is unable to determine whether
the payment is allocable to the Automobile Loan or to the Insurance Add-On
Amount, the payment shall be applied first to any unpaid Scheduled Automobile
Loan Payments and then to the Insurance Add-On Amount. Net Liquidation Proceeds
on any Automobile Loan will be used first to pay the Principal Balance and
accrued interest on such Automobile Loan and then to pay the related Insurance
Add-On Amount. If an Obligor under an Automobile Loan with respect to which the
Servicer has placed Force-Placed Insurance fails to make scheduled payments of
such Insurance Add-On Amount as due, and the Servicer has determined that
eventual payment of the Insurance Add-On Amount is unlikely, the Servicer may,
but shall not be required to, purchase such Automobile Loan from the Issuer for
the Purchase Amount on any subsequent Determination Date. Any such Automobile
Loan, and any Automobile Loan with respect to which the Servicer has placed
Force-Placed Insurance which has been paid in full (excluding any Insurance
Add-On Amounts) will be assigned to the Servicer.
(d) The Servicer may sue to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Custodian. If the
Servicer elects to commence a legal proceeding to enforce an Insurance Policy,
the act of commencement shall be deemed to be an automatic assignment of the
rights of the Custodian and the Certificateholders under such Insurance Policy
to the Servicer for purposes of collection only. If, however, in any enforcement
suit or legal proceeding it is held that the Servicer may not enforce an
Insurance Policy on the grounds that it is not a real party in interest or a
holder entitled to enforce the Insurance Policy,
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the Custodian, at the Servicer's expense, shall take such steps as the Servicer
deems necessary to enforce such Insurance Policy, including bringing suit in its
name or the name of the Custodian for the benefit of the Certificateholders.
(e) The Servicer will cause itself and may cause the Custodian to be named
as named insured under all policies of Collateral Insurance.
5.5 Maintenance of Security Interests in Vehicles.
Consistent with the policies and procedures required by this Agreement, the
Servicer shall take such steps on behalf of the Custodian as are necessary to
maintain perfection of the security interest created by each Automobile Loan in
the related Financed Vehicle, including, but not limited to, obtaining the
execution by the Obligors and the recording, registering, filing, re-recording,
re-filing, and re-registering of all security agreements, financing statements
and financing change statements as are necessary to maintain the security
interest granted by the Obligors under the respective Automobile Loans. The
Custodian hereby authorizes the Servicer, and the Servicer agrees, to take any
and all steps necessary to re-perfect such security interest on behalf of the
Custodian as necessary because of the relocation of a Financed Vehicle or for
any other reason.
5.6 Covenants, Representations, and Warranties of Servicer.
By its execution and delivery of this Agreement, the Servicer makes the
following representations, warranties and covenants on which the Custodian
relies in accepting the Purchased Assets, and on which the Authenticating Agent
relies in authenticating the Certificates.
(a) The Servicer covenants as follows:
(i) Liens in Force. The Financed Vehicle securing each Automobile
Loan shall not be released in whole or in part from the security
interest granted by the Automobile Loan, except upon payment in
full of the Automobile Loan or as otherwise contemplated herein;
(ii) No Impairment. The Servicer shall do nothing to impair the
rights of the Custodian or the Certificateholders in the
Purchased Assets, the Dealer Agreements, the Dealer Assignments
or the Insurance Policies except as otherwise expressly provided
herein;
(iii) No Amendments. The Servicer shall not extend or otherwise amend
the terms of any Automobile Loan, except in accordance with
Section 5.2; and
(iv) Restrictions on Liens. The Servicer shall not (i) create, incur
or suffer to exist, or agree to create, incur or suffer to
exist, or consent to cause or permit in the future (upon the
happening of a contingency or otherwise) the creation,
incurrence or existence of any Lien or restriction on
transferability of the Automobile Loans, and the restrictions on
transferability imposed by this Agreement or (ii) sign or file
under the
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PPSA of any jurisdiction any financing statement which names
AmeriCredit Canada as a debtor, or sign any security
agreement authorizing any secured party thereunder to file
such financing statement, with respect to the Automobile
Loans.
(b) The Servicer represents, warrants and covenants as of the Closing Date
as to itself that the representations and warranties set forth on the
Schedule of Representations attached hereto as Schedule B are true and
correct, provided that such representations and warranties contained
therein and herein shall not apply to any entity other than
AmeriCredit Canada.
5.7 Purchase of Automobile Loans Upon Breach of Covenant.
Upon discovery by any of the Servicer or a Responsible Officer of the
Custodian of a breach of any of the covenants set forth in Sections 5.5 or
5.6(a), the party discovering such breach shall give prompt written notice to
the others; provided, however, that the failure to give any such notice shall
not affect any obligation of the Servicer under this Section. As of the second
Accounting Date following its discovery or receipt of notice of any breach of
any covenant set forth in Sections 5.5 or 5.6(a) which materially and adversely
affects the interests of the Certificateholders in any Automobile Loan
(including any Liquidated Automobile Loan) (or, at the Servicer's election, the
first Accounting Date so following) or the related Financed Vehicle, the
Servicer shall, unless such breach shall have been cured in all material
respects, purchase from the Custodian the Automobile Loan affected by such
breach and, on such Accounting Date, the Servicer shall pay the related Purchase
Amount. It is understood and agreed that the obligation of the Servicer to
purchase any Automobile Loan (including any Liquidated Automobile Loan) with
respect to which such a breach has occurred and is continuing shall, if such
obligation is fulfilled, constitute the sole remedy against the Servicer for
such breach available to the Certificateholders or the Custodian; provided,
however, that the Servicer shall indemnify the Issuer, the Backup Servicer, the
Custodian and the Certificateholders from and against all costs, expenses,
losses, damages, claims and liabilities, including reasonable fees and expenses
of counsel, which may be asserted against or incurred by any of them as a result
of third party claims arising out of the events or facts giving rise to such
breach. This section shall survive the termination of this Agreement and the
earlier removal or resignation of the Custodian and/or the Backup Servicer.
5.8 Total Servicing Fee; Payment of Certain Expenses by Servicer.
On each Distribution Date, the Servicer (provided that the Servicer is not
AmeriCredit Canada) shall be entitled to receive out of the Collection Account a
monthly servicing fee equal to the product of one-twelfth times 2.25% of the
Pool Balance as of the opening of business on the first day of the related
Collection Period (the "Servicing Fee") pursuant to Section 6.4. The Servicer
shall be required to pay all expenses incurred by it in connection with its
activities under this Agreement (including taxes imposed on the Servicer,
expenses incurred in connection with distributions and reports made by the
Servicer to Certificateholders and all other fees and expenses of the Backup
Servicer or the Custodian, except taxes levied or assessed against the Custodian
or the Certificateholders, and claims against the Custodian or the
Certificateholders in respect of indemnification, which taxes and claims in
respect of indemnification against the
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Custodian or the Certificateholders are expressly stated to be for the account
of AmeriCredit Canada). The Servicer shall be liable for the fees and expenses
of the Backup Servicer, the Custodian, the Depository Bank (and any fees under
the Depository Agreement) and the Independent Accountants. Notwithstanding the
foregoing, if the Servicer shall not be AmeriCredit Canada, a successor to
AmeriCredit Canada as Servicer including the Backup Servicer permitted by
Section 10.3 shall not be liable for taxes levied or assessed against the
Custodian or the Certificateholders or claims against the Custodian or the
Certificateholders in respect of indemnification, or the fees and expenses
referred to above.
5.9 Servicer's Certificate.
On or prior to 12:00 p.m. (Toronto time) each Distribution Date, the
Servicer shall deliver (facsimile delivery being acceptable) to the Custodian,
the Backup Servicer and each Rating Agency a Servicer's Certificate executed by
a Responsible Officer of the Servicer containing among other things, (i) all
information necessary to enable the Custodian to make any withdrawal and deposit
required by Error! Reference source not found. and to make the distributions
required by Error! Reference source not found., (ii) a listing of all Purchased
Automobile Loans purchased as of the related Accounting Date, identifying the
Automobile Loans so purchased, (iii) all information necessary to enable the
Custodian to send the statements to Certificateholders required by Article 6 and
(iv) all information necessary to enable the Custodian to reconcile the
aggregate cash flows to and from the Collection Account for the related
Collection Period and Distribution Date, including the accounting required by
Article 6. Automobile Loans purchased by the Servicer on the related Accounting
Date and each Automobile Loan which became a Liquidated Automobile Loan or which
was paid in full during the related Collection Period shall be identified by
account number (as set forth in the Schedule of Automobile Loans).
5.10 Annual Statement as to Compliance, Notice of Servicer Termination
Event.
(a) The Servicer shall deliver to the Custodian, the Backup Servicer
and each Rating Agency, on or before October 31 (or 120 days after the end of
the Servicer's fiscal year, if other than June 30) of each year, beginning on
October 31, 2003, an officer's certificate signed by any Responsible Officer of
the Servicer, dated as of June 30 (or other applicable date) of such year,
stating that (i) a review of the activities of the Servicer during the preceding
12-month period (or such other period as shall have elapsed from the Closing
Date to the date of the first such certificate (which period shall not be less
than six months)) and of its performance under this Agreement has been made
under such Responsible Officer's supervision, and (ii) to such Responsible
Officer's knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement throughout such period, or, if there has been a
default in the fulfilment of any such obligation, specifying each such default
known to such Responsible Officer and the nature and status thereof.
(b) The Seller or the Servicer shall deliver to the Custodian, the
Backup Servicer, the Servicer or the Seller (as applicable) and each Rating
Agency promptly after having obtained knowledge thereof, but in no event later
than two (2) Business Days thereafter, written notice in an officer's
certificate of any event which with the giving of notice or lapse of time, or
both, would become a Servicer Termination Event.
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5.11 Annual Independent Accountants' Report.
The Servicer shall cause a firm of nationally recognized independent
certified public accountants (the "Independent Accountants"), who may also
render other services to the Servicer or to the Seller, to deliver to the
Custodian, the Backup Servicer and each Rating Agency, on or before October 31
(or 120 days after the end of the Servicer's fiscal year, if other than June 30)
of each year, beginning on October 31, 2003, with respect to the twelve months
ended the immediately preceding June 30 (or other applicable date) (or such
other period as shall have elapsed from the Closing Date to the date of such
certificate (which period shall not be less than six months)), a statement (the
"Accountants' Report") addressed to the board of directors of the Servicer and
to the Custodian, to the effect that such firm has audited the books and records
of AmeriCredit Corp., in which the Servicer is included as a consolidated
subsidiary, and issued its report thereon in connection with the audit report on
the consolidated financial statements of AmeriCredit Corp. or has audited such
other books and records as may be necessary for a Servicer other than
AmeriCredit Canada, and that (i) such audit was made in accordance with
generally accepted auditing standards, and accordingly included such tests of
the accounting records and such other auditing procedures as such firm
considered necessary in the circumstances, (ii) the firm is independent of the
Seller and the Servicer within the meaning of the Code of Professional Ethics of
the American Institute of Certified Public Accountants, and (iii) includes a
report on the application of agreed upon procedures to three randomly selected
Servicer's Certificates noting whether any exceptions or errors in the
Servicer's Certificates were found.
5.12 Access to Certain Documentation and Information Regarding Automobile
Loans.
The Servicer shall provide to representatives of each of the Custodian
and the Backup Servicer reasonable access to the documentation regarding the
Automobile Loans. In each case, such access shall be afforded without charge but
only upon reasonable request and during normal business hours. Nothing in this
Section shall affect the obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Obligors, and the
failure of the Servicer to provide access as provided in this Section as a
result of such obligation shall not constitute a breach of this Section.
5.13 Monthly Tape.
On or before each Distribution Date, the Servicer will deliver to the
Custodian and the Backup Servicer a computer tape and a diskette (or any other
electronic transmission acceptable to the Custodian and the Backup Servicer) in
a format acceptable to the Custodian and the Backup Servicer containing the
information with respect to the Automobile Loans as of the preceding Accounting
Date necessary for preparation of the Servicer's Certificate relating to the
immediately preceding Collection Period and necessary to review the application
of collections as provided in Article 6. In addition, upon the occurrence of a
Servicer Termination Event the Servicer shall, if so requested by the Custodian,
deliver to the Backup Servicer its Collection Records and its Monthly Records
within 15 days after demand therefor and a computer tape containing as of the
close of business on the date of demand all of the data maintained by the
Servicer in computer format in connection with servicing the Automobile Loans.
Other than the duties specifically set forth in this Agreement, the Backup
Servicer shall have no obligations
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hereunder, including, without limitation, to supervise, verify, monitor or
administer the performance of the Servicer. The Backup Servicer shall have no
liability for any actions taken or omitted by the Servicer.
5.14 Fidelity Bond and Errors and Omissions Policy.
The Servicer has obtained, and shall continue to maintain in full force
and effect, a fidelity bond and errors and omissions policy of a type and in
such amount as is customary for servicers engaged in the business of servicing
automobile loans.
ARTICLE 6
CUSTODIAL ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
6.1 Establishment of Custodial Accounts.
(a) (i) The Custodian, on behalf of the Certificateholders, will
establish and maintain in its own name an Eligible Deposit Account (the
"Collection Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Custodian on behalf of the
Certificateholders.
(i) The Custodian, on behalf of the Certificateholders, shall
establish and maintain in its own name an Eligible Deposit Account (the
"Accumulation Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Custodian on behalf of the
Certificateholders.
(ii) The Custodian, on behalf of the Certificateholders, shall
establish and maintain in its own name an Eligible Deposit Account (the "Spread
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Custodian on behalf of the
Certificateholders. On the Closing Date, the Issuer shall deposit (or cause to
be deposited) $4,907,052.95 to the Spread Account.
(b) Funds on deposit in the Collection Account, the Accumulation
Account and the Spread Account (collectively, the "Custodial Accounts") shall be
invested by the Custodian (or any custodian with respect to funds on deposit in
any such account) in Eligible Investments selected in writing by the Servicer
(pursuant to standing instructions or otherwise); provided however, it is
understood and agreed that the Custodian and the Servicer shall not be liable
for the selection of, or any loss arising from such investment in, Eligible
Investments. All such Eligible Investments shall be held by or on behalf of the
Custodian for the benefit of the Certificateholders. Other than as permitted by
the Rating Agencies, funds on deposit in any Custodial Account shall be invested
in Eligible Investments that will mature so that such funds will be available at
the close of business on the Business Day immediately preceding the following
Distribution Date; provided that on the Business Day preceding each Distribution
Date all Investment Earnings on funds on deposit therein shall be deposited into
the Collection Account and shall be deemed to constitute a portion of the
Available Funds for such Distribution Date. Funds deposited in a Custodial
Account on the day immediately preceding a Distribution
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Date upon the maturity of any Eligible Investments are not required to be
invested overnight. All Eligible Investments will be held to maturity.
(c) All investment earnings of moneys deposited in the Custodial
Accounts shall be deposited (or caused to be deposited) by the Custodian in the
Collection Account, and any loss resulting from such investments shall be
charged to such account. The Servicer will not direct the Custodian to make any
investment of any funds held in any of the Custodial Accounts unless the
security interest granted and perfected in such account will continue to be
perfected in such investment, in either case without any further action by any
Person, and, in connection with any direction to the Custodian to make any such
investment, if requested by the Custodian, the Servicer shall deliver to the
Custodian an Opinion of Counsel, acceptable to the Custodian, to such effect.
(d) The Custodian shall not in any way be held liable by reason of any
insufficiency in any of the Custodial Accounts resulting from any loss on any
Eligible Investment included therein except for losses attributable to the
Custodian's gross negligence or bad faith or its failure to make payments on
such Eligible Investments issued by the Custodian, in its commercial capacity as
principal obligor and not as trustee, in accordance with their terms.
(e) If the Servicer shall have failed to give investment directions in
writing for any funds on deposit in the Custodial Accounts to the Custodian by
1:00 p.m. Toronto time (or such other time as may be agreed by the Issuer and
Custodian) on any Business Day, amounts collected or receivable from the ACAR
Series 2002-A Certificateholders' Assets will be applied as if there had not
been such directions; then the Custodian shall, to the fullest extent
practicable, invest and reinvest funds in the Custodial Accounts in the
investment described in clause (g) of the definition of Eligible Investments.
(f) The Certificateholders shall possess all right, title and interest
in all funds on deposit from time to time in the Custodial Accounts and in all
proceeds thereof (including all Investment Earnings on the Custodial Accounts)
and all such funds, investments, proceeds and income shall be part of the ACAR
Series 2002-A Certificateholders' Assets. Except as otherwise provided herein,
the Custodial Accounts shall be under the sole dominion and control of the
Custodian for the benefit of the Certificateholders. If, at any time, any of the
Custodial Accounts ceases to be an Eligible Deposit Account, the Custodian (or
the Servicer on its behalf) shall within five Business Days (or such longer
period as to which each Rating Agency may consent) establish a new Custodial
Account as an Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Custodial Account. In connection with the foregoing, the
Servicer agrees that it shall notify the Custodian in writing promptly upon any
of such Custodial Accounts ceasing to be an Eligible Deposit Account.
(g) The Servicer shall have the power to instruct the Custodian to make
withdrawals and payments from the Custodial Accounts for the purpose of
permitting the Servicer and the Custodian to carry out their respective duties
hereunder.
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6.2 Certain Reimbursements to the Servicer.
The Servicer will be entitled to be reimbursed from amounts on deposit
in the Collection Account with respect to a Collection Period for amounts
previously deposited in the Collection Account but later determined by the
Servicer to have resulted from mistaken deposits or postings or cheques returned
for insufficient funds. The amount to be reimbursed hereunder shall be paid to
the Servicer on the related Distribution Date pursuant to Section 6.4(a)(i) upon
certification by the Servicer of such amounts and the provision of such
information to the Custodian as may be necessary in the opinion of the Custodian
to verify the accuracy of such certification; provided, however, that the
Servicer must provide such clarification within 12 months of such mistaken
deposit, posting, or returned cheque. The Servicer will additionally be entitled
to receive from amounts on deposit in the Collection Account with respect to a
Collection Period any amounts paid by Obligors that were collected in the
Depository Account but that do not relate to (i) principal and interest payments
due on the Automobile Loans or (ii) any fees or expenses related to extensions
due on the Automobile Loans.
6.3 Application of Collections.
(a) All collections or payments by or on behalf of the Obligor for the
Collection Period with respect to each Automobile Loan (other than a Purchased
Automobile Loan) shall be applied by the Servicer to interest and principal in
accordance with the Simple Interest Method.
(b) The Servicer and the Seller, as applicable, shall deposit or cause
to be deposited in the Collection Account on the Determination Date on which
such obligations are due the aggregate Purchase Amount with respect to Purchased
Automobile Loans.
(c) Any Optional Purchase Price payable by the Servicer under Section
12.2 shall be deposited in the Collection Account.
(d) If the Certificate Balance Accumulation Amount on deposit in the
Accumulation Account on the Targeted Certificate Balance Distribution Date for a
Class of Offered Certificates is or will be less than the outstanding
Certificate Balance of such Class (after giving effect to all deposits made or
to be made to the Accumulation Account on such date other than pursuant to this
Section), the Servicer will have the option to make an advance (a "Maturity
Advance") in any amount up to the amount of such shortfall. If the Servicer
elects to make a Maturity Advance it shall deposit the amount of the Maturity
Advance into the Accumulation Account on the related Targeted Certificate
Balance Distribution Date in immediately available funds.
6.4 Distribution Date Payments From the Collection Account.
(a) On each Distribution Date, the Custodian shall (based solely on the
information contained in the Servicer's Certificate delivered with respect to
the related Distribution Date) distribute the following amounts of Available
Funds from the Collection Account unless otherwise specified and in the
following order of priority:
(i) in the event that AmeriCredit Canada is no longer Servicer,
to the Servicer, the Servicing Fee for the preceding
Collection Period and other amounts relating to mistaken
deposits, postings or cheques returned for
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insufficient funds during the preceding Collection
Period, and to pay to AmeriCredit Canada, any amounts
paid by Obligors during the Collection Period that were
collected in the Depository Account or the Collection
Account but did not relate to (i) principal and interest
payments due on the Automobile Loans or (ii) any fees or
expenses related to extensions due on the Automobile
Loans;
(ii) to the Custodian and the Backup Servicer, their
respective accrued and unpaid fees and expenses then due
to each of them;
(iii) to the Accumulation Account, the aggregate of the
Certificateholders' Certificate Rate Distributable
Amounts for such Distribution Date;
(iv) to the Servicer, any outstanding Maturity Advances;
(v) to the Accumulation Account, the Certificateholders'
Certificate Balance Distributable Amount for such
Distribution Date; and
(vi) to the Spread Account, any remaining Available Funds.
6.5 Spread Account; Distribution Date Payments from Spread Account
(a) On each Distribution Date, the Custodian shall, based on the
instructions of the Servicer, withdraw the Deficiency Draw Amount, if any, for
such date from the Spread Account and apply such amount to make the following
deposits or payments in the following order of priority:
(i) first, to the Servicer, any remaining amounts due under
Section 6.4(a)(i) on the related Distribution Date;
(ii) second, to the Custodian and the Backup Servicer, any
remaining amounts due under Section 6.4(a)(ii) on the
related Distribution Date;
(iii) third, if the related Distribution Date is an Offered
Certificate Distribution Date, to the Accumulation
Account, the excess of (x) the aggregate of the
Certificateholders' Targeted Certificate Rate
Distributable Amounts for such Distribution Date over (y)
the aggregate of the Certificateholders' Certificate Rate
Distributable Amounts on deposit in the Accumulation
Account on such Distribution Date (after giving effect to
all deposits to the Accumulation Account under Section
6.4(a)(iii));
(iv) fourth, to the Accumulation Account, the
Certificateholders' Parity Deficit Amount on the related
Distribution Date; and
(v) fifth, if the related Distribution Date is the Final
Scheduled Distribution Date for any Class of Offered
Certificates, to the Accumulation Account, any remaining
outstanding Certificate Balance for such Class (after
giving effect to all other applications of available
funds on such date).
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(b) On each Distribution Date, the excess, if any, of (A) the amounts on
deposit in the Spread Account (after giving effect to any payments under Section
6.5(a) above) and (B) the lesser of (i) 2% of the Initial Pool Balance, and (ii)
the Adjusted Certificate Balance, shall be paid or distributed by the Custodian
as follows:
(i) first, to the Accumulation Account, an amount equal to the lesser
of (x) such excess and (y) the Accelerated Certificate Balance
Distributable Amount for such Distribution Date; and
(ii) second, to the holders of the Residual Certificates, any
remaining excess.
provided, however, that on each Distribution Date on and after the occurrence of
an Event of Default, the Custodian shall, based on the instructions of the
Servicer, transfer from the Spread Account to the Accumulation Account the
lesser of (x) the Adjusted Certificate Balance of the Offered Certificates on
such date (after giving effect to all other amounts available to make
distributions in respect thereof on such date) and (v) all amounts on deposit in
or deposited to the Spread Account on such Distribution Date.
(c) Upon any distribution to the holders of the Residual Certificates of
amounts properly distributed from the Spread Account, neither the Custodian nor
the other Certificateholders will have any rights in, or claims to, such
amounts.
(d) Following (i) the payment in full of the Certificate Balance of the
Class A Certificates, Class B Certificates and the Class C Certificates and of
all other amounts to be distributed hereunder to the Custodian and the
Certificateholders other than the holders of the Residual Certificates and (ii)
the termination of this Agreement, any amount remaining on deposit in the Spread
Account shall be paid to the holders of the Residual Certificates. The holders
of the Residual Certificates shall in no event be required to refund any amounts
properly distributed pursuant to this Section 6.5.
6.6 Certificate Rate and Certificate Balance Distributions.
(a) Prior to the occurrence of an Event of Default, on each Offered
Certificate Distribution Date for a Class of Offered Certificates, the Custodian
shall, based on the instructions of the Servicer, make the following
distributions from the Accumulation Account to the Certificateholders of the
applicable Class:
(i) first, there shall be distributed to the holders of the Class A
Certificates, pro-rata, the lesser of (A) the sum of the
Certificateholders' Targeted Certificate Rate Distributable
Amounts for the Class A Certificates and such Offered Certificate
Distribution Date, and (B) the sum of the Certificateholders'
Certificate Rate Distributable Amounts for all Classes and such
Offered Certificate Distribution Date and the amount, if any,
deposited to the Accumulation Account under Section 6.5(a)(iii)
on such Offered Certificate Distribution Date;
(ii) second , there shall be distributed to the holders of the Class A
Certificates, pro rata, the lesser of (A) the Certificateholders'
Targeted Certificate Rate
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Distributable Amount for the Class B Certificates and such
Offered Certificate Distribution Date, and (B) the excess of (1)
the amount determined under clause (a)(i)(B) over (2) the amount
distributed or paid to the holders of the Class A Certificates
under Section 6.5(a)(i) on such Offered Certificate Distribution
Date; and
(iii) third, the lesser of (A) the Certificateholders' Targeted
Certificate Rate Distributable Amount for the Class C
Certificates and such Offered Certificate Distribution Date, and
(B) the excess of (1) the amount determined under clause
(a)(i)(B) over (2) the amount distributed or paid to the holders
of the Class A Certificates and the Class B Certificates under
Sections 6.5(a)(i) and (ii) on such Offered Certificate
Distribution Date, shall be distributed by the Custodian to the
holders of the Class C Certificates, pro-rata.
(b) Prior to the occurrence of an Event of Default, on the Targeted
Certificate Balance Distribution Date for any Class of Offered Certificates and,
if the Certificate Balance of such Class is not distributed in full on that
Targeted Certificate Balance Distribution Date, on each Distribution Date
thereafter until the Certificate Balance of such Class is reduced to zero, the
Custodian shall, based on the instructions of the Servicer, distribute to the
Certificateholders of such Class the lesser of (i) the Certificate Balance of
such Class, and (ii) the amount on deposit in the Accumulation Account on such
date (after giving effect to all deposits to the Accumulation Account on such
date); provided, however, if more than one Class of Offered Certificates are to
receive distributions with respect to their Certificate Balances as described
above, distributions will be made on such Classes sequentially as follows: (1)
to the Class A-1 Certificates until the Certificate Balance thereof has been
reduced to zero; (2) to the Class A-2 Certificates until the Certificate Balance
thereof has been reduced to zero; (3) to the Class A-3 Certificates until the
Certificate Balance thereof has been reduced to zero; (4) to the Class B
Certificate Balance thereof has been reduced to zero; and (5) to the Class C
Certificates until the Certificate Balance thereof has been reduced to zero.
(c) On and after the occurrence of an Event of Default, distributions in
respect of the Targeted Certificate Rate Distributable Amounts and the
Certificate Balances for the Offered Certificates of each Class shall be made in
accordance with Section 6.7.
6.7 Distributions Following an Event of Default.
On each Offered Certificate Distribution Date on or after the occurrence of
an Event of Default, the Custodian shall, based on the instructions of the
Servicer, distribute amounts deposited into or on deposit in the Accumulation
Account on such date as follows and in the following order of priority:
(a) first, there shall be distributed to the holders of the Class A
Certificates, pro-rata, the lesser of (i) the sum of the Certificateholders'
Targeted Certificate Rate Distributable Amounts for the Class A Certificates and
such Offered Certificate Distribution Date, and (ii) the amount, if any, on
deposit in or deposited to the Accumulation Account on such date;
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(b) second, there shall be distributed to the holders of the Class A
Certificates, pro-rata, until the Certificate Balances of the Class A
Certificates has been reduced to zero, the lesser of (i) the sum of the
Certificate Balances of the Class A Certificates for such Offered Certificate
Distribution Date and (ii) the amount, if any, on deposit in or deposited to the
Accumulation Account on such date (after giving effect to subsection (a) above);
(c) third, there shall be distributed to the holders of the Class B
Certificates, pro-rata, the lesser of (i) the Certificateholders' Targeted
Certificate Rate Distributable Amounts for the Class B Certificates and such
Offered Certificate Distribution Date, and (ii) the amount, if any, on deposit
in or deposited to the Accumulation Account on such date (after giving effect to
subsections (a) and (b) above);
(d) fourth, there shall be distributed to the holders of the Class B
Certificates, pro-rata, until the Certificate Balance of the Class B
Certificates has been reduced to zero, the lesser of (i) the Certificate Balance
of the Class B Certificates for such Offered Certificate Distribution Date and
(ii) the amount, if any, on deposit in or deposited to the Accumulation Account
on such date (after giving effect to subsections (a) through (c) above);.
(e) fifth, there shall be distributed to the holders of the Class C
Certificates, pro-rata, the lesser of (i) the Certificateholders' Targeted
Certificate Rate Distributable Amounts for the Class C Certificates and such
Offered Certificate Distribution Date, and (ii) the amount, if any, on deposit
in or deposited to the Accumulation Account on such date (after giving effect to
subsections (a) through (d) above);
(f) sixth, there shall be distributed to the holders of the Class C
Certificates, pro-rata, until the Certificate Balance of the Class C
Certificates has been reduced to zero, the lesser of (i) the Certificate Balance
of the Class C Certificates for such Offered Certificate Distribution Date and
(ii) the amount, if any, on deposit in or deposited to the Accumulation Account
on such date (after giving effect to subsection (a) through (e) above); and
(g) thereafter, any remaining balance shall be deposited to the Spread
Account and applied in accordance with Section 6.5.
6.8 Statements to Certificateholders.
(a) On or prior to each Distribution Date, the Servicer will provide to the
Custodian and, subject to the terms of applicable orders of the Canadian
Securities Administrators (the "Regulators") and except as may be otherwise
permitted or required by orders given by the Regulators from time to time, the
Custodian shall provide each Certificateholder of record (with a copy to each of
the Rating Agencies) a statement setting forth at least the following
information as to the Certificates to the extent applicable:
(i) the amount of the distribution(s) allocable to the applicable
Certificate Rate;
(ii) the amount of the distribution(s) allocable to reduce Certificate
Balances;
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(iii) each Class of Certificates' aggregate outstanding
Certificate Balance amount, after considering all payments
reported under (ii) above on that date;
(iv) the related Certificateholders' Certificate Rate Carryover
Amount and the related Certificateholders' Certificate
Balance Carryover Amount, if any, and the change in those
amounts from the preceding statement;
(v) the Servicing Fee paid for the related calendar month;
(vi) the Adjusted Certificate Balances;
(vii) the amount of any outstanding Maturity Advances;
(viii) the Certificate Balance of the Residual Certificates; and
(ix) amounts on deposit in the Spread Account.
(b) After the end of each calendar year, within the required time period,
the Servicer will provide to the Custodian, and the Custodian will furnish to
each Person who at any time during the calendar year was a Certificateholder,:
(i) a statement as to the aggregate amounts of Certificate Rate
and Certificate Balance distributions paid to the
Certificateholder;
(ii) information regarding the amount of servicing compensation
the Servicer received; and
(iii) other information as the Seller deems necessary to enable
the Certificateholder to prepare its tax returns.
(c) Within the prescribed period of time for tax reporting purposes after
the end of each calendar year, the Servicer will provide the Certificateholders
a statement containing the amounts described in Section 6.8(b)(iii) above for
that calendar year and any other information required by applicable tax laws.
(d) Seller will cause AmeriCredit Corp. to post such information contained
in the monthly statement referred to in paragraph (a) above at its world wide
web site located at "www.americredit.com".
ARTICLE 7
THE CERTIFICATES
7.1 The Certificates.
(a) To evidence the co-ownership of the Automobile Loans and the other ACAR
Series 2002-A Certificateholders' Assets by the Certificateholders, there are
hereby authorized and created one Class of Certificates to be designated
generally as the "AmeriCredit Canada CDOR
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+ 0.17% Automobile Receivables Co-Ownership Certificates, Series 2002-A, Class
A-1", one Class of Certificates to be designated generally as the "AmeriCredit
Canada 4.697% Automobile Receivables Co-Ownership Certificates, Series 2002-A,
Class A-2", one Class of Certificates to be designated generally as the
"AmeriCredit Canada 5.422% Automobile Receivables Co-Ownership Certificates,
Series 2002-A, Class A-3", one Class of Certificates to be designated generally
as the "AmeriCredit Canada 7.070% Automobile Receivables Co-Ownership
Certificates, Series 2002-A, Class B", one Class of Certificates to be
designated generally as the "AmeriCredit Canada 8.344% Automobile Receivables
Co-Ownership Certificates, Series 2002-A, Class C" and one Class of Residual
Certificates to be designated generally as the "AmeriCredit Canada Automobile
Receivables Co-Ownership Certificates, Series 2002-A, Class R".
(b) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-6; provided, that any of the
Certificates may be issued with appropriate insertions, omissions, substitutions
and variations, and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Agreement, as
may be required to comply with any law or with rules or regulations pursuant
thereto, or with the rules of any securities market in which the Certificates
are admitted to trading, or to conform to general usage. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 7.3 beneficial ownership interests in the Certificates shall initially
be held and transferred through the book-entry facilities of the Clearing
Agency. The Certificates (other than the Residual Certificate) will be issuable
only in denominations corresponding to Initial Certificate Balances (or other
denominations consistent with the requirements of the Clearing Agency) as of the
Closing Date of not less than $150,000. The Residual Certificate will not have
any Certificate Balance.
(c) The Certificates shall be executed by manual or facsimile signature on
behalf of the Issuer by the Certificate Registrar hereunder by an authorized
signatory in accordance with and upon written receipt of written instructions
from the Issuer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Certificate
Registrar shall be entitled to all benefits under this Agreement, subject to the
following sentence, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, however, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
(d) The Certificate Registrar is hereby authorized to sign and shall on
the Closing Date sign and register in accordance with Section 7.1(c) in
accordance with and upon written receipt of written instructions from the Issuer
and deliver to the Clearing Agency, on behalf of the purchasers of the Offered
Certificates, one Certificate for each Class of Offered Certificates, registered
in each case in the name of CDS & Co., as nominee for the Clearing Agency. The
Certificate Registrar is hereby authorized to sign and shall on the Closing Date
sign and register in accordance with Section 7.1(c) in accordance with and upon
written receipt of written
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instructions from the Issuer and deliver to each purchaser of a Residual
Certificate, one Certificate for each Class of Residual Certificate purchased.
7.2 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a certificate register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided
(the "Certificate Register"). The Custodian is hereby initially appointed (and
hereby agrees to act in accordance with the terms hereof) as Certificate
Registrar for the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided. The Certificate Registrar may
appoint, by a written instrument delivered to the Issuer and the Custodian (if
the Custodian is not the Certificate Registrar), any other bank or trust company
to act as Certificate Registrar under such conditions as the predecessor
Certificate Registrar may prescribe, provided that the predecessor Certificate
Registrar shall not be relieved of any of its duties or responsibilities
hereunder by reason of such appointment. If the Custodian resigns or is removed
in accordance with the terms hereof, the successor Custodian shall immediately
succeed to its duties as Certificate Registrar. The Issuer and the Custodian (if
it is no longer the Certificate Registrar) shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register. Upon written request of any
Certificateholder made for purposes of communicating with other
Certificateholders with respect to their rights under this Agreement, the
Certificate Registrar shall promptly furnish such Certificateholder with a list
of the other Certificateholders of record identified in the Certificate Register
at the time of the request.
(b) Subject to the preceding provisions of this Section 7.2, upon
surrender for registration of transfer of any Certificate at the office of the
Certificate Registrar in Toronto, Ontario, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class of a like aggregate Percentage Interest.
(c) At the option of any Certificateholder, its Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
of a like aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(d) Other than any Certificates transferred and registered on the Closing
Date, every Certificate presented or surrendered for transfer or exchange shall
(if so required by the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Certificateholder thereof or his
attorney duly authorized in writing. Such instrument of transfer may be required
to
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include such representations of the transferee of the Certificate as may be
required by the Certificate Registrar.
(e) No fee or service charge shall be imposed for any transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(f) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such cancelled Certificates in accordance with its standard
procedures.
(g) Upon request, the Certificate Registrar shall provide to the Servicer,
the Backup Servicer and the Issuer notice of each transfer of a Certificate and
shall provide to each such Person an updated copy of the Certificate Register.
7.3 Book-Entry Certificates.
(a) Each Class of Offered Certificates shall initially be issued as one or
more Certificates registered in the name of the Clearing Agency or its nominee
and, except as provided in Section 7.3(c) below, transfer of such Certificates
may not be registered by the Certificate Registrar unless such transfer is to a
successor Clearing Agency that agrees to hold such Certificates for the
respective Certificate Owners with Ownership Interests therein. Such Certificate
Owners shall hold and transfer their respective Ownership Interests in and to
such Certificates through the book-entry facilities of the Clearing Agency and,
except as provided in Section 7.3(c) below, shall not be entitled to definitive,
fully registered Certificates ("Definitive Certificates") in respect of such
Ownership Interests. All transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the procedures established by the Clearing Agency Participant representing
each such Certificate Owner. Each Clearing Agency Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents in accordance with the Clearing Agency's normal procedures.
(b) The Custodian, the Issuer, the Backup Servicer and the Certificate
Registrar may for all purposes, including the making of payments due on the
Book-Entry Certificates, deal with the Clearing Agency as the authorized
representative of the Certificate Owners with respect to such Certificates for
the purposes of exercising the rights of Certificateholders hereunder. The
rights of Certificate Owners with respect to the Book-Entry Certificates shall
be limited to those established by law and agreements between such Certificate
Owners and the Clearing Agency Participants. Multiple requests and directions
from, and votes of, the Clearing Agency as holder of the Book-Entry Certificates
with respect to any particular matter shall not be deemed inconsistent if they
are made with respect to different Certificate Owners. The Custodian may
establish a reasonable record date in connection with solicitations of consents
from or voting by Certificateholders and shall give notice to the Clearing
Agency of such record date.
(c) On the Closing Date, upon receipt of and in accordance with
registration instructions delivered by the Issuer, the Certificate Registrar
shall execute, at the Issuer's expense, and the
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Authenticating Agent shall authenticate and deliver, Definitive Certificates in
favour of each purchaser of Residual Certificates. In addition, if (i)(A) the
Issuer advises the Custodian and the Certificate Registrar in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to a Class of the Book-Entry Certificates, and (B)
the Issuer is unable to locate a qualified successor, or (ii) the Issuer at its
option advises the Custodian and the Certificate Registrar in writing that it
elects to terminate the book-entry system through the Clearing Agency with
respect to a Class of Book-Entry Certificates, the Certificate Registrar shall
notify all affected Certificate Owners, through the Clearing Agency, of the
occurrence of any such event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates of any Class thereof by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration of transfer, the Certificate Registrar shall execute, at
the Issuer's expense, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. The Issuer shall provide the Certificate
Registrar with an adequate inventory of Definitive Certificates. None of the
Issuer, the Custodian or the Certificate Registrar shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Class of Certificates,
the registered holders of such Definitive Certificates shall be recognized as
Certificateholders hereunder and, accordingly, shall be entitled directly to
receive payments on, to exercise Voting Rights with respect to, and to transfer
and exchange such Definitive Certificates.
7.4 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Custodian and the Certificate Registrar such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
actual notice to the Custodian or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Custodian and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Custodian and the Certificate Registrar) connected therewith.
7.5 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Issuer, the
Custodian, the Certificate Registrar, the Backup Servicer and any agent of any
of them may treat the Person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 6.4 and for all other purposes whatsoever and none of the Issuer, the
Custodian, the Certificate Registrar, the Backup Servicer or any agent of any of
them shall be affected by notice to the contrary.
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7.6 Rights of Certificateholders.
(a) Each of the Certificateholders shall own an undivided co-ownership
interest in the ACAR Series 2002-A Certificateholders' Assets as
tenants-in-common which shall entitle each Certificateholder to the benefit of
all provisions of this Agreement in accordance with their respective interests
hereunder, including, without limitation, the right to receive all distributions
and payments in accordance with Article 6. The co-ownership interest of each
Certificateholder shall be transferable only in accordance with this Agreement.
No Certificateholder may seek or be entitled to partition or other division of
the ACAR Series 2002-A Certificateholders' Assets. Each Certificateholder shall
acquire and hold its co-ownership interest subject to the terms of this
Agreement and shall be so bound with respect to its ability to deal with such
interest. No Certificateholder shall have the right to enter into any contract,
instrument or agreement with any third party with respect to its co-ownership
interest in the ACAR Series 2002-A Certificateholders' Assets, nor grant a lien,
charge or security interest in such ACAR Series 2002-A Certificateholders'
Assets provided that, subject to the foregoing, nothing in this Section 7.6
shall prevent a Certificateholder from granting a security interest in its
Certificate or its rights under this Agreement to the holder of such security
interest in accordance therewith. No Certificateholder shall have the right to
act as agent of any other Certificateholder with respect to the ACAR Series
2002-A Certificateholders' Assets. No Certificateholder shall have a claim of
any kind against any other Certificate in respect of its co-ownership interest
in the ACAR Series 2002-A Certificateholders' Assets.
(b) The rights of each Certificateholder with respect to the ACAR Series
2002-A Certificateholders' Assets shall be governed by, and may be exercised
only in accordance with, this Agreement. Except as expressly provided herein, no
Certificateholder shall have any right to demand any payment from any Obligor
nor shall any Certificateholder be entitled to receive, take any action to
terminate the custody of, or to require any sale, partition or other dealing in,
any of the ACAR Series 2002-A Certificateholders' Assets or any other property
from time to time included in the ACAR Series 2002-A Certificateholders' Assets
and each such Certificateholder agrees that it will not authorize or purport any
assignee or transferee of a Certificate to do so.
(c) Each Certificateholder, by accepting its Certificate and acquiring an
undivided co-ownership interest in the ACAR Series 2002-A Certificateholders'
Assets, as tenant in common, evidenced by a Certificate, shall be deemed to have
agreed to be bound by the terms and conditions of this Agreement upon acceptance
of its Certificate and shall be so bound.
(d) Notwithstanding any other provision of this Agreement, any and all
rights and claims of any Certificateholder arising under this Agreement or any
Certificate and all right, title or interest of any Certificateholder in or to
the ACAR Series 2002-A Certificateholders' Assets or any portion thereof shall
conclusively be deemed to have been terminated, extinguished, satisfied,
discharged or exhausted, as the case may be, at the time at which such
Certificateholder receives payment in full or in kind of all amounts to which it
may be entitled under this Agreement.
(e) Each Certificate shall constitute evidence of the rights and legal
title of the holder thereof in and to an undivided co-ownership interest, as
tenant in common, in and to the ACAR
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Series 2002-A Certificateholders' Assets, the right to receive the portion of
the payments to be made from the ACAR Series 2002-A Certificateholders' Assets,
in each case in accordance with the terms and conditions of this Agreement and
the relevant Certificate, and also the other rights accorded to a holder of a
Certificate.
(f) The death or incapacity of any Certificateholder shall not operate to
termination this Agreement nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or sale of the ACAR Series
2002-A Certificateholders' Assets, nor otherwise affect the rights, obligations,
and liabilities of the parties to this Agreement or any of them.
(g) No Certificateholder shall have any right to vote or in any manner
otherwise control the operation and management of the ACAR Series 2002-A
Certificateholders' Assets, or the obligations of the parties to this Agreement
(except as specifically provided in this Agreement) nor shall anything in this
Agreement set forth, or contained in the terms of the Certificates, be construed
so as to constitute the Certificateholders from time to time as partners or
members of an association; nor shall any Certificateholder be under any
liability to any third person by reason of any action taken pursuant to any
provision of this Agreement.
7.7 Taxes.
In the event that any withholding tax is imposed on the payment (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to the Certificateholder in accordance with this
Section. The Custodian is hereby authorized and directed to retain from amounts
otherwise distributable to the Certificateholders sufficient funds for the
payment of any withholding tax for which the Issuer may be liable (but such
authorization shall not prevent the Custodian from contesting any such tax in
appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding tax
imposed with respect to a Certificateholder shall be treated as cash distributed
to such Certificateholder at the time it is withheld by the Issuer and remitted
to the appropriate taxing authority. If there is a possibility that withholding
tax is payable with respect to a distribution (such as a distribution to a
non-Canadian Certificateholder), the Custodian may in its sole discretion
withhold such amounts in accordance with this Section 7.7. In the event that a
Certificateholder wishes to apply for a refund of any such withholding tax, the
Custodian shall reasonably cooperate with such Certificateholder in making such
claim so long as such Certificateholder agrees to reimburse the Custodian for
any out-of-pocket expenses (including legal fees and expenses) incurred.
7.8 Place of Payments.
Distributions required to be made to Certificateholders on any Offered
Certificate Distribution Date shall be made to each Certificateholder of record
on the preceding Record Date either by (i) wire transfer, in immediately
available funds, to the account of such Certificateholder at a bank or other
entity having appropriate facilities therefore, if such Certificateholder shall
have provided to the Certificate Registrar appropriate written instructions at
least five Business Days prior to such Distribution Date and such
Certificateholder's Certificates in the aggregate evidence a denomination of not
less than $1,000,000 or (ii) by
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cheque mailed to such Certificateholder at the address of such holder appearing
in the Certificate Register. Notwithstanding the foregoing, the final
distribution in respect of any Certificate (whether on the Final Scheduled
Distribution Date or otherwise) will be payable only upon presentation and
surrender of such Certificate at the office or agency maintained for that
purpose by the Certificate Registrar pursuant to Section 7.2 of this Agreement.
Subject to Section 6.1 and this Section, monies received by the Custodian
hereunder need not be segregated in any manner except to the extent required by
law and may be deposited under such general conditions as may be prescribed by
law, and the Custodian shall not be liable for any interest thereon.
ARTICLE 8
THE SELLER
8.1 Representations of Seller.
The Seller makes the following representations on which the Issuer is
deemed to have relied in acquiring the Purchased Assets and on which the
Custodian and Backup Servicer may rely. The representations speak as of the
execution and delivery of this Agreement and as of the Closing Date and shall
survive the sale of the Purchased Assets to the Issuer and the transfer of the
Purchased Assets to the Custodian.
(a) Schedule of Representations. The representations and warranties set
forth on the Schedule of Representations attached hereto as Schedule
B are true and correct.
(b) Organization and Good Standing. The Seller has been duly incorporated
and is validly existing as a corporation in good standing under the
federal laws of Canada, with power and authority to own its
properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire, own and sell the Purchased Assets transferred to the Issuer.
(c) Due Qualification. The Seller is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions where the failure to do
so would materially and adversely affect Seller's ability to transfer
the Purchased Assets to the Issuer pursuant to this Agreement, or the
validity or enforceability of the Purchased Assets or to perform
Seller's obligations hereunder and under the Basic Documents to which
the Seller is a party.
(d) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and the Basic Documents to which
it is a party and to carry out its terms and their terms,
respectively; the Seller has full power and authority to sell and
assign the Purchased Assets to be sold and assigned to and deposited
with the Issuer by it and has duly authorized such sale and
assignment to the Issuer by all necessary corporate action; and the
execution, delivery and
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performance of this Agreement and the Basic Documents to which the
Seller is a party have been duly authorized by the Seller by all
necessary corporate action.
(e) Valid Sale, Binding Obligations. This Agreement effects a valid sale,
transfer and assignment of the Purchased Assets, enforceable against
the Seller and creditors of and purchasers from the Seller; and this
Agreement and the Basic Documents to which the Seller is a party,
when duly executed and delivered, shall constitute legal, valid and
binding obligations of the Seller enforceable in accordance with
their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) No Violation. The consummation of the transactions contemplated by
this Agreement and the Basic Documents to which the Seller is a party
and the fulfilment of the terms of this Agreement and the Basic
Documents to which the Seller is a party shall not conflict with,
result in any breach of any of the terms and provisions of or
constitute (with or without notice, lapse of time or both) a default
under the articles of incorporation or by-laws of the Seller, or any
indenture, agreement, mortgage, deed of trust or other instrument to
which the Seller is a party or by which it is bound, or result in the
creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument, other than this Agreement, or
violate any law, order, rule or regulation applicable to the Seller
of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or any of its properties.
(g) No Proceedings. There are no proceedings or investigations pending
or, to the Seller's knowledge, threatened against the Seller, before
any court, regulatory body, administrative agency or other tribunal
or governmental instrumentality having jurisdiction over the Seller
or its properties (A) asserting the invalidity of this Agreement or
any of the Basic Documents to which the Seller is a party, (B)
seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents to which the Seller is a
party, (C) seeking any determination or ruling that might materially
and adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, this Agreement or any of
the Basic Documents to which the Seller is a party, or (D) seeking to
adversely affect the federal income tax or other federal, state or
local tax attributes of the Certificates.
(h) True Sale.
(i) It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the
Purchased Assets from the Seller to the Issuer and that the
beneficial interest in and title to such Purchased
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Assets not be part of the Seller's estate in the event of a
bankruptcy or insolvency proceeding by or against the Seller
under any bankruptcy or insolvency law. No Purchased Assets or
portion thereof has been sold, transferred, assigned or pledged
by the Seller to any Person other than the Issuer. Immediately
prior to the transfer and assignment herein contemplated, the
Seller had good title to each Purchased Asset, free and clear of
all Liens, encumbrances, security interests and rights of others
and, immediately upon the transfer thereof, the Issuer shall
have good title to each such Purchased Asset, free and clear of
all Liens, encumbrances, security interests and rights of
others; and the transfer and assignment of the Purchased Assets
to the Issuer has been perfected under the applicable PPSA; and
(ii) It is the intention of the Issuer that the transfer and
assignment herein contemplated constitute a sale of the
Purchased Assets from the Issuer to the Custodian and the
Certificateholders and that the beneficial interest in and title
to such Purchased Assets not be part of the Issuer's estate in
the event of a bankruptcy or insolvency proceeding by or against
the Issuer under any bankruptcy or insolvency law. No Purchased
Asset or portion thereof has been sold, transferred, assigned or
pledged by the Issuer to any Person other than the Custodian and
the Certificateholders. Immediately prior to the transfer and
assignment herein contemplated, the Issuer had good title to
each Purchased Asset, free and clear of all Liens, encumbrances,
security interests and rights of others and, immediately upon
the transfer thereof, the Custodian and the Certificateholders
shall have good title to each such Purchased Asset, free and
clear of all Liens, encumbrances, security interests and rights
of others; and the transfer and assignment of the Purchased
Assets to the Custodian and the Certificateholders has been
perfected under the applicable PPSA.
(i) Chief Executive Office. The chief executive office of the Seller is
located in the Province of Ontario.
(j) No Consents. No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Seller of or compliance by the Seller
with this Agreement or the consummation of the transactions
contemplated by this Agreement, other than those which have been
obtained by the Seller.
(k) Not Bulk Sale. The transfer, assignment and conveyance of the
Purchased Assets by the Seller to the Issuer does not constitute a
bulk sale under applicable bulk sales legislation or any similar
statutory provisions in effect in any applicable jurisdiction.
(l) Title. The Seller will treat the transfer hereunder of the Purchased
Assets to the Issuer in its financial statements as a sale of the
Purchased Assets to the Issuer. The consideration received by the
Seller upon the sale of the Purchased Assets to
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the Issuer will constitute fair consideration for the Purchased
Assets. The Seller will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the sale of the Purchased
Assets to the Issuer. The Seller is not selling the Purchased
Assets to the Issuer with any intent to hinder, delay or defraud
any of the creditors of the Seller.
8.2 Corporate Existence.
(a) During the term of this Agreement, the Seller will keep in full force
and effect its existence, rights and franchises as a corporation under the laws
of the jurisdiction of its incorporation and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Agreement, the Basic Documents and each other instrument or agreement necessary
or appropriate to the proper administration of this Agreement and the
transactions contemplated hereby.
(b) During the term of this Agreement, the Seller shall observe the
applicable legal requirements for the recognition of the Seller as a legal
entity separate and apart from its Affiliates, including as follows:
(i) the Seller shall maintain corporate records and books of
account separate from those of its Affiliates;
(ii) except as otherwise provided in this Agreement, the Seller
shall not commingle its assets and funds with those of its
Affiliates;
(iii) the Seller shall hold such appropriate meetings of its Board
of Directors as are necessary to authorize all the Seller's
corporate actions required by law to be authorized by the
Board of Directors, shall keep minutes of such meetings and
of meetings of its shareholder(s) and observe all other
customary corporate formalities (and any successor Seller
not a corporation shall observe similar procedures in
accordance with its governing documents and applicable law);
(iv) the Seller shall at all times hold itself out to the public
under the Seller's own name as a legal entity separate and
distinct from its Affiliates; and
(v) all transactions and dealings between the Seller and its
Affiliates will be conducted on an arm's-length basis.
8.3 Liability of Seller; Indemnities.
(a) The Seller shall be liable in accordance herewith only to the extent
of the obligations specifically undertaken by the Seller under this Agreement.
(b) The Seller shall indemnify, defend and hold harmless (i) the Custodian
and the Backup Servicer and each of their respective officers, directors,
employees and agents, from and against any taxes (including any sales, goods and
services, gross receipts, general corporation,
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tangible personal property, privilege or license taxes) that may at any time be
asserted against any such Person with respect to the transactions contemplated
in this Agreement and any of the Basic Documents (except any income taxes
arising out of fees paid to the Custodian or the Backup Servicer and except any
taxes to which the Custodian or the Backup Servicer may otherwise be subject to,
without regard to the transactions contemplated hereby), and (ii) the Issuer and
the Certificateholders from and against any goods and services taxes, sales
taxes or other transfer taxes arising out of (x) the sale and conveyance of the
Purchased Assets to the Issuer or the Custodian and the Certificateholders or
(y) the issuance and original sale of the Certificates or (z) the servicing of
the Purchased Assets by AmeriCredit Canada, as Servicer, in accordance with and
on the terms of the Purchase Agreement and the Pooling and Servicing Agreement
and, in each case, all costs and expenses in defending against taxes indemnified
under this Section.
(c) The Seller shall indemnify, defend and hold harmless the Issuer, the
Backup Servicer and the Custodian and the respective officers, directors,
employees and agents thereof and the Certificateholders from and against any
loss, liability or expense incurred by reason of the Seller's wilful
misfeasance, bad faith or negligence in the performance of its duties under this
Agreement, or by reason of reckless disregard of its obligations and duties
under this Agreement.
(d) The Seller shall indemnify, defend and hold harmless the Custodian and
the Backup Servicer and the respective officers, directors, employees and agents
thereof from and against any and all costs, expenses, losses, claims, damages
and liabilities arising out of, or incurred in connection with the acceptance or
performance of the duties set forth herein and in the Basic Documents except to
the extent that such cost, expense, loss, claim, damage or liability shall be
due to the wilful misfeasance, bad faith or negligence (except for errors in
judgment) of the Custodian and the Backup Servicer respectively.
(e) Indemnification under this Section 8.3 shall survive the resignation
or removal of the Custodian and the termination of this Agreement and shall
include reasonable fees and expenses of counsel and other expenses of
litigation. If the Seller shall have made any indemnity payments pursuant to
this Section and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to the Seller, without interest.
8.4 Merger or Consolidation of, or Assumption of the Obligations of, Seller.
Any Person (a) into which the Seller may be merged or consolidated, (b)
which may result from any merger or consolidation to which the Seller shall be a
party or (c) which may succeed to the properties and assets of the Seller
substantially as a whole, which Person in any of the foregoing cases executes an
agreement of assumption to perform every obligation of the Seller under this
Agreement, shall be the successor to the Seller hereunder without the execution
or filing of any document or any further act by any of the parties to this
Agreement; provided, however, that (i) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Section 3.1 shall
have been breached and no Servicer Termination Event, and no event which, after
notice or lapse of time, or both, would become a Servicer Termination Event
shall have happened and be continuing, (ii) the Seller shall have delivered to
the Custodian an Officers' Certificate and an Opinion of Counsel each stating
that such
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consolidation, merger or succession and such agreement of assumption comply with
this Section and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, (iii) the Rating
Agency Condition shall have been satisfied with respect to such transaction and
(iv) the Seller shall have delivered to the Custodian and the Backup Servicer an
Opinion of Counsel stating that, in the opinion of such counsel, either (A) all
financing statements and financing change statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Custodian in the Automobile Loans and reciting the details of
such filings or (B) no such action shall be necessary to preserve and protect
such interest. Notwithstanding anything herein to the contrary, the execution of
the foregoing agreement of assumption and compliance with clauses (i), (ii),
(iii) and (iv) above shall be conditions to the consummation of the transactions
referred to in clauses (a), (b) or (c) above.
8.5 Limitation on Liability of Seller and Others.
The Seller and any director or officer or employee or agent of the Seller
may rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising under any Basic Document. The Seller shall not be under any obligation
to appear in, prosecute or defend any legal action that shall not be incidental
to its obligations under this Agreement, and that in its opinion may involve it
in any expense or liability.
8.6 Ownership of the Certificates.
The Seller and any Affiliate thereof may in its individual or any other
capacity become the owner or pledgee of Certificates with the same rights as it
would have if it were not the Seller or an Affiliate thereof, except as
expressly provided herein or in any Basic Document. Certificates so owned by the
Seller or such Affiliate shall have an equal and proportionate benefit under the
provisions of the Basic Documents, without preference, priority, or distinction
as among all of the Certificates; provided, however, that any Certificates owned
by the Seller or any Affiliate thereof, during the time such Certificates are
owned by them, shall be without voting rights for any purpose set forth in the
Basic Documents. The Residual Certificate will initially be held by AmeriCredit
Canada. The Seller shall notify the Rating Agency and the Custodian with respect
to any transfer of the Residual Certificate.
ARTICLE 9
THE SERVICER
9.1 Representations of Servicer.
AmeriCredit Canada makes the following representations on which the Issuer
is deemed to have relied in acquiring the Purchased Assets. The representations
speak as of the execution and delivery of this Agreement and as of the Closing
Date, and shall survive the sale of the Purchased Assets to the Issuer and the
transfer of the Purchased Assets to the Custodian.
(a) Representations and Warranties. The representations and warranties set
forth on the Schedule of Representations attached hereto as Schedule B
are true and
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correct, provided that such representations and warranties contained
therein and herein shall not apply to any entity other than
AmeriCredit Canada;
(b) Organization and Good Standing. AmeriCredit Canada has been duly
organized and is validly existing and in good standing under the laws
of its jurisdiction of incorporation, with power, authority and legal
right to own its properties and to conduct its business as such
properties are currently owned and such business is currently
conducted, and had at all relevant times, and now has, power,
authority and legal right to enter into and perform its obligations
under this Agreement;
(c) Due Qualification. AmeriCredit Canada is duly qualified to do business
as a foreign corporation in good standing and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business
(including the servicing of the Automobile Loans as required by this
Agreement) requires or shall require such qualification;
(d) Power and Authority. AmeriCredit Canada has the power and authority to
execute and deliver this Agreement and the Basic Documents to which it
is a party and to carry out its terms and their terms, respectively,
and the execution, delivery and performance of this Agreement and such
Basic Documents have been duly authorized by the Servicer by all
necessary corporate action;
(e) Binding Obligation. This Agreement and the Basic Documents to which
the Servicer is a party shall constitute legal, valid and binding
obligations of the Servicer enforceable in accordance with their
respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(f) No Violation. The consummation of the transactions contemplated by
this Agreement and the Basic Documents to which the Servicer is a
party, and the fulfilment of the terms of this Agreement and the Basic
Documents to which the Servicer is a party, shall not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Servicer, or any
indenture, agreement, mortgage, deed of trust or other instrument to
which the Servicer is a party or by which it is bound, or result in
the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement, mortgage, deed
of trust or other instrument, other than this Agreement, or violate
any law, order, rule or regulation applicable to the Servicer of any
court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Servicer or any of its properties;
(g) No Proceedings. There are no proceedings or investigations pending or,
to the Servicer's knowledge, threatened against the Servicer, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality
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having jurisdiction over the Servicer or its properties (A) asserting
the invalidity of this Agreement or any of the Basic Documents, (B)
seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Agreement
or any of the Basic Documents, or (C) seeking any determination or
ruling that might materially and adversely affect the performance by
the Servicer of its obligations under, or the validity or
enforceability of, this Agreement or any of the Basic Documents to
which the Servicer is a party or (D) seeking to adversely affect the
federal income tax or other federal, state, provincial, or local tax
attributes of the Certificates; and
(h) No Consents. The Servicer is not required to obtain the consent of any
other party or any consent, license, approval or authorization, or
registration or declaration with, any governmental authority, bureau
or agency in connection with the execution, delivery, performance,
validity or enforceability of this Agreement which has not already
been obtained.
9.2 Liability of Servicer; Indemnities.
(a) The Servicer (in its capacity as such) shall be liable hereunder only
to the extent of the obligations in this Agreement specifically undertaken by
the Servicer and the representations made by the Servicer.
(b) The Servicer shall defend, indemnify and hold harmless the Custodian,
the Backup Servicer, their respective officers, directors, agents and employees,
and the Certificateholders from and against any and all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel and expenses of litigation arising out of or resulting from the use,
ownership or operation by the Servicer or any Affiliate thereof of any Financed
Vehicle.
(c) The Servicer (when the Servicer is AmeriCredit Canada) shall indemnify,
defend and hold harmless (i) the Custodian and the Backup Servicer and each of
their respective officers, directors, employees and agents, from and against any
taxes (including any sales, goods and services, gross receipts, general
corporation, tangible personal property, privilege or license taxes) that may at
any time be asserted against any such Person with respect to the transactions
contemplated in this Agreement and any of the Basic Documents (except any income
taxes arising out of fees paid to the Custodian or the Backup Servicer and
except any taxes to which the Custodian or the Backup Servicer may otherwise be
subject to, without regard to the transactions contemplated hereby), and (ii)
the Issuer and the Certificateholders from and against any goods and services
taxes, sales taxes or other transfer taxes arising out of (x) the sale and
conveyance of the Purchased Assets to the Issuer or the Custodian and the
Certificateholders or (y) the issuance and original sale of the Certificates or
(z) the servicing of the Purchased Assets by AmeriCredit Canada, as Servicer, in
accordance with and on the terms of the Purchase Agreement and the Pooling and
Servicing Agreement and, in each case, all costs and expenses in defending
against taxes indemnified under this Section.
(d) The Servicer (when the Servicer is not AmeriCredit Canada) shall
indemnify, defend and hold harmless the Custodian, the Backup Servicer, their
respective officers, directors, agents
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and employees and the Certificateholders from and against any taxes with respect
to the sale of Automobile Loans in connection with servicing hereunder that may
at any time be asserted against any of such parties with respect to the
transactions contemplated in this Agreement, including, without limitation, any
sales, gross receipts, tangible or intangible personal property, privilege or
license taxes (but not including any federal, provincial, state or other income
taxes, including franchise taxes asserted with respect to, and as of the date
of, the sale of the Purchased Assets to the Issuer or the issuance and original
sale of the Certificates) and costs and expenses in defending against the same.
(e) The Servicer shall indemnify, defend and hold harmless the Custodian,
the Backup Servicer, their respective officers, directors, agents and employees
and the Certificateholders from and against any and all costs, expenses, losses,
claims, damages, and liabilities to the extent that such cost, expense, loss,
claim, damage, or liability arose out of, or was imposed upon the Custodian, the
Backup Servicer or the Certificateholders by reason of the breach of this
Agreement by the Servicer, the negligence, misfeasance, or bad faith of the
Servicer in the performance of its duties under this Agreement or by reason of
reckless disregard of its obligations and duties under this Agreement.
(f) AmeriCredit Canada shall indemnify the Custodian and the Backup
Servicer, and the respective officers, directors, agents and employees thereof
against any and all loss, liability or expense, (other than overhead and
expenses incurred in the normal course of business) incurred by each of them in
connection with the acceptance, administration or performance of their duties
under the Basic Documents other than if such loss, liability or expense was
incurred by the Custodian or the Backup Servicer as a result of any such
entity's wilful misconduct, bad faith or gross negligence.
(g) Indemnification under this Article 9 shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer or AmeriCredit Canada has made any indemnity payments pursuant to this
Article and the recipient thereafter collects any of such amounts from others,
the recipient shall promptly repay such amounts collected to the Servicer,
without interest.
9.3 Merger or Consolidation of, or Assumption of, the Obligations of the
Servicer or Backup Servicer.
(a) AmeriCredit Canada shall not merge or consolidate with any other
Person, convey, transfer or lease substantially all its assets as an entirety to
another Person, or permit any other Person to become the successor to
AmeriCredit Canada's business unless, after the merger, consolidation,
conveyance, transfer, lease or succession, the successor or surviving entity
shall be capable of fulfilling the duties of AmeriCredit contained in this
Agreement and shall be acceptable to the Custodian and the Rating Agencies. Any
corporation (i) into which AmeriCredit Canada may be merged or consolidated,
(ii) resulting from any merger or consolidation to which AmeriCredit Canada
shall be a party, (iii) which acquires by conveyance, transfer, or lease
substantially all of the assets of AmeriCredit Canada, or (iv) succeeding to the
business of AmeriCredit Canada, in any of the foregoing cases shall execute an
agreement of assumption to perform every obligation of AmeriCredit Canada under
this Agreement and, whether or not such assumption agreement is executed, shall
be the successor to AmeriCredit
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Canada under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties to this Agreement, anything in
this Agreement to the contrary notwithstanding; provided, however, that nothing
contained herein shall be deemed to release AmeriCredit Canada from any
obligation. AmeriCredit Canada shall provide notice of any merger, consolidation
or succession pursuant to this Section to the Custodian, the Certificateholders
and each Rating Agency. Notwithstanding the foregoing, AmeriCredit Canada shall
not merge or consolidate with any other Person or permit any other Person to
become a successor to AmeriCredit Canada's business, unless (x) immediately
after giving effect to such transaction, no representation or warranty made
pursuant to Section 5.6 shall have been breached (for purposes hereof, such
representations and warranties shall speak as of the date of the consummation of
such transaction), (y) AmeriCredit Canada shall have delivered to the Custodian,
the Backup Servicer and the Rating Agencies an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation, merger or succession
and such agreement of assumption comply with this Section and that all
conditions precedent, if any, provided for in this Agreement relating to such
transaction have been complied with, and (z) AmeriCredit Canada shall have
delivered to the Custodian and the Rating Agencies an Opinion of Counsel,
stating in the opinion of such counsel, either (A) all financing statements and
financing change statements and amendments thereto have been executed and filed
that are necessary to preserve and protect the interest of the Custodian and the
Certificateholders in the Purchased Assets and reciting the details of the
filings or (B) no such action shall be necessary to preserve and protect such
interest.
(b) Any corporation (i) into which the Backup Servicer may be merged or
consolidated, (ii) resulting from any merger or consolidation to which the
Backup Servicer shall be a party, (iii) which acquires by conveyance, transfer
or lease substantially all of the assets of the Backup Servicer, or (iv)
succeeding to the business of the Backup Servicer, in any of the foregoing cases
shall execute an agreement of assumption to perform every obligation of the
Backup Servicer under this Agreement and, whether or not such assumption
agreement is executed, shall be the successor to the Backup Servicer under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement, anything in this Agreement to the
contrary notwithstanding; provided, however, that nothing contained herein shall
be deemed to release the Backup Servicer from any obligation.
9.4 Limitation on Liability of Servicer, Backup Servicer and Others.
(a) Neither the Servicer, the Backup Servicer nor any of the directors or
officers or employees or agents of the Servicer or Backup Servicer shall be
under any liability to the Issuer or the Certificateholders, except as provided
in this Agreement, for any action taken or for refraining from the taking of any
action pursuant to this Agreement; provided, however, that this provision shall
not protect the Servicer, the Backup Servicer or any such Person against any
liability that would otherwise be imposed by reason of a breach of this
Agreement or wilful misfeasance, bad faith or negligence (excluding errors in
judgment) in the performance of duties; provided further that this provision
shall not affect any liability to indemnify the Custodian for costs, taxes,
expenses, claims, liabilities, losses or damages paid by the Custodian, in its
individual capacities. The Servicer, the Backup Servicer and any director,
officer, employee or agent of the Servicer or the Backup Servicer may rely in
good faith on the written advice of
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counsel or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this Agreement.
(b) The Backup Servicer shall not be liable for any obligation of the
Servicer contained in this Agreement or for any errors of the Servicer contained
in any computer tape, certificate or other data or document delivered to the
Backup Servicer hereunder or on which the Backup Servicer must rely in order to
perform its obligations hereunder, and the Custodian, the Backup Servicer, the
Seller and the Certificateholders shall look only to the Servicer to perform
such obligations. The Backup Servicer and the Custodian shall have no
responsibility and shall not be in default hereunder or incur any liability for
any failure, error, malfunction or any delay in carrying out any of their
respective duties under this Agreement if such failure or delay results from the
Backup Servicer acting in accordance with information prepared or supplied by a
Person other than the Backup Servicer (or contractual agents) or the failure of
any such other Person to prepare or provide such information. The Backup
Servicer shall have no responsibility, shall not be in default and shall incur
no liability for (i) any act or failure to act of any third party (other than
its contractual agents), including the Servicer, (ii) any inaccuracy or omission
in a notice or communication received by the Backup Servicer from any third
party (other than its contractual agents), (iii) the invalidity or
unenforceability of any Automobile Loan under applicable law, (iv) the breach or
inaccuracy of any representation or warranty made with respect to any Automobile
Loan, or (v) the acts or omissions of any successor Backup Servicer.
9.5 Delegation of Duties.
The Servicer may delegate duties under this Agreement to an Affiliate of
AmeriCredit Canada with the prior written consent of the Custodian and the
Backup Servicer, provided, however, that no such consent shall be required in
connection with the execution, delivery or performance of the AmeriCredit US
Custodial Agreement by AmeriCredit Canada and AmeriCredit Corp. The Servicer
also may at any time perform through sub-contractors the specific duties of (i)
repossession of Financed Vehicles, (ii) tracking Financed Vehicles' insurance
and (iii) pursuing the collection of deficiency balances on certain Liquidated
Automobile Loans and may perform other specific duties through such
sub-contractors in accordance with Servicer's customary servicing policies and
procedures, with the prior consent of the Rating Agencies; provided, however,
that no such delegation or sub-contracting duties by the Servicer shall relieve
the Servicer of its responsibility with respect to such duties. Neither
AmeriCredit Canada nor any party acting as Servicer hereunder shall appoint any
subservicer hereunder without the prior written consent of the Backup Servicer.
9.6 Servicer and Backup Servicer Not to Resign.
Subject to the provisions of Section 9.3, neither the Servicer nor the
Backup Servicer shall resign from the obligations and duties imposed on it by
this Agreement as Servicer or Backup Servicer except upon a determination that
by reason of a change in legal requirements the performance of its duties under
this Agreement would cause it to be in violation of such legal requirements in a
manner which would have a material adverse effect on the Servicer or the Backup
Servicer, as the case may be, and a Certificate Majority does not elect to waive
the obligations of the Servicer or the Backup Servicer, as the case may be, to
perform the duties which render it legally unable to act or to delegate those
duties to another Person. Any such
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determination permitting the resignation of the Servicer or Backup Servicer
shall be evidenced by an Opinion of Counsel. No resignation of the Servicer
shall become effective until the Backup Servicer or a successor Servicer that is
an Eligible Servicer shall have assumed the responsibilities and obligations of
the Servicer. No resignation of the Backup Servicer shall become effective until
a Person that is an Eligible Servicer shall have assumed the responsibilities
and obligations of the Backup Servicer; provided, however, that in the event a
successor Backup Servicer is not appointed within 60 days after the Backup
Servicer has given notice of its resignation and has provided the Opinion of
Counsel required by this Section, the Backup Servicer may petition a court for
its removal.
ARTICLE 10
SERVICER TERMINATION EVENT
10.1 Servicer Termination Event.
For purposes of this Agreement, each of the following shall constitute a
"Servicer Termination Event":
(a) Any failure by the Servicer to deliver to the Custodian for
distribution to Certificateholders any proceeds or payment required to
be so delivered under the terms of this Agreement that continues
unremedied for a period of two Business Days (one Business Day with
respect to payment of Purchase Amounts) after written notice is
received by the Servicer from the Custodian or after discovery of such
failure by a Responsible Officer of the Servicer; or
(b) Failure by the Servicer to deliver to the Custodian the Servicer's
Certificate by 12:00 p.m. on any Distribution Date; or
(c) Failure on the part of the Servicer to duly observe or perform in any
material respect any other covenants or agreements of the Servicer set
forth in this Agreement, which failure (i) materially and adversely
affects the rights of Certificateholders, and (ii) continues
unremedied for a period of 60 days after knowledge thereof by the
Servicer or after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the
Servicer by the holders of the Certificates entitled to at least 25%
of the Voting Rights; or
(d) The entry of a decree or order for relief by a court or regulatory
authority having jurisdiction in respect of the Servicer in an
involuntary case under applicable bankruptcy laws, as now or hereafter
in effect, or another present or future, bankruptcy, insolvency or
similar law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Servicer or
of any substantial part of its property or ordering the winding up or
liquidation of the affairs of the Servicer and the continuance of any
such decree or order unstayed and in effect for a period of 60
consecutive days or the commencement of an involuntary case under the
applicable bankruptcy laws, as now or
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hereinafter in effect, or another present or applicable bankruptcy,
insolvency or similar law and such case is not dismissed within 60
days; or
(e) The commencement by the Servicer of a voluntary case under applicable
bankruptcy laws, as now or hereafter in effect, or any other present
or future, applicable bankruptcy, insolvency or similar law, or the
consent by the Servicer to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Servicer or of any substantial part of
its property or the making by the Servicer of an assignment for the
benefit of creditors or the failure by the Servicer generally to pay
its debts as such debts become due or the taking of corporate action
by the Servicer in furtherance of any of the foregoing; or
(f) Any representation, warranty or statement of the Servicer made in this
Agreement or any certificate, report or other writing delivered
pursuant hereto shall prove to be incorrect in any material respect as
of the time when the same shall have been made, and the incorrectness
of such representation, warranty or statement has a material adverse
effect on the Custodian or the Certificateholders and, within 30 days
after knowledge thereof by the Servicer or after written notice
thereof shall have been given to the Servicer by the Custodian or by
the holders of the Certificates entitled to at least 25% of the Voting
Rights and the circumstances or condition in respect of which such
representation, warranty or statement was incorrect shall not have
been eliminated or otherwise cured.
10.2 Consequences of a Servicer Termination Event.
If a Servicer Termination Event shall occur and be continuing either the
Custodian (to the extent it has knowledge thereof) or the holders of the
Certificates entitled to at least 66 2/3% of the Voting Rights, by notice given
in writing to the Servicer (and to the Custodian if given by the
Certificateholders) may terminate all of the rights and obligations of the then
Servicer under this Agreement. On or after the receipt by the Servicer of such
written notice or upon termination of the term of the Servicer, all authority,
power, obligations and responsibilities of the Servicer under this Agreement,
whether with respect to the Certificates or the Purchased Assets or otherwise,
automatically shall pass to, be vested in and become obligations and
responsibilities of the Backup Servicer (or such other successor Servicer
appointed by the Custodian); provided, however, that the successor Servicer
shall have no liability with respect to any obligation which was required to be
performed by the terminated Servicer prior to the date that the successor
Servicer becomes the Servicer or any claim of a third party based on any alleged
action or inaction of the terminated Servicer. The successor Servicer is
authorized and empowered by this Agreement to execute and deliver, on behalf of
the terminated Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination. The
terminated Servicer agrees to cooperate with the successor Servicer in effecting
the termination of the responsibilities and rights of the terminated Servicer
under this Agreement, including, without limitation, the transfer to the
successor Servicer for administration by it of all cash amounts that shall at
the time be held by the terminated Servicer for deposit, or have been deposited
by the terminated Servicer, in the Collection Account or thereafter received
with
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respect to the Automobile Loans and the delivery to the successor Servicer of
all Automobile Loan Files, Monthly Records and Collection Records and a computer
tape in readable form as of the most recent Business Day containing all
information necessary to enable the successor Servicer or a successor Servicer
to service the Purchased Assets. If requested by the Custodian, the successor
Servicer shall direct the Obligors to make all payments under the Automobile
Loans directly to the successor Servicer (in which event the successor Servicer
shall process such payments in accordance with Section 5.2(e)), or to a
Depository established by the successor Servicer, at the successor Servicer's
expense. The terminated Servicer shall grant the Custodian and the successor
Servicer reasonable access to the terminated Servicer's premises at the
terminated Servicer's expense.
10.3 Appointment of Successor.
(a) On and after the time the Servicer receives a notice of termination
pursuant to Section 10.2, or upon the resignation of the Servicer pursuant to
Section 9.6, the Backup Servicer shall be the successor in all respects to the
Servicer in its capacity as servicer under this Agreement and the transactions
set forth or provided for in this Agreement, and shall be subject to all the
rights, responsibilities, restrictions, duties, liabilities and termination
provisions relating thereto placed on the Servicer by the terms and provisions
of this Agreement except as otherwise stated herein. The Custodian and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. If a successor Servicer is acting
as Servicer hereunder, it shall be subject to termination under Section 10.2
upon the occurrence of any Servicer Termination Event applicable to it as
Servicer.
(b) If the Backup Servicer shall be legally unable or unwilling to act as
Servicer, the Backup Servicer, the Custodian or a Certificate Majority may
petition a court of competent jurisdiction to appoint any Eligible Servicer as
the successor to the Servicer. Pending appointment pursuant to the preceding
sentence, the Backup Servicer shall act as successor Servicer unless it is
legally unable to do so, in which event the outgoing Servicer shall continue to
act as Servicer until a successor has been appointed and accepted such
appointment. Subject to Section 9.6, no provision of this Agreement shall be
construed as relieving the Backup Servicer of its obligation to succeed as
successor Servicer upon the termination of the Servicer pursuant to Section
10.2, or upon the resignation of the Servicer pursuant to Section 9.6. If upon
the termination of the Servicer pursuant to Section 10.2 or the resignation of
the Servicer pursuant to Section 9.6, the Custodian appoints a successor
Servicer other than the Backup Servicer, the Backup Servicer shall not be
relieved of its duties as Backup Servicer hereunder.
(c) Any successor Servicer shall be entitled to the Servicing Fee and such
other compensation as described in Section 5.8 hereof. If any successor Servicer
is appointed as a result of the Backup Servicer's refusal (in breach of the
terms of this Agreement) to act as Servicer although it is legally able to do
so, the Custodian or a Certificate Majority and such successor Servicer may
agree on reasonable additional compensation to be paid to such successor
Servicer by the Backup Servicer, which additional compensation shall be paid by
such breaching Backup Servicer in its individual capacity and solely out of its
own funds; provided, however, it being understood and agreed that the Custodian
shall give prior notice to the Backup Servicer with respect to the appointment
of such successor and the payment of additional compensation, if any. If any
successor Servicer is appointed for any reason other than the
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Backup Servicer's refusal to act as Servicer although legally able to do so, the
Backup Servicer shall not be liable for any Servicing Fee, additional
compensation or other amounts to be paid to such successor Servicer in
connection with its assumption and performance of the servicing duties described
herein.
10.4 Notification to Certificateholders.
Upon any termination of, or appointment of a successor to, the Servicer,
the Custodian shall give prompt written notice thereof to each Certificateholder
and to the Rating Agencies.
10.5 Waiver of Past Defaults.
The Custodian may, on behalf of all Certificateholders, waive any default
by the Servicer in the performance of its obligations hereunder and its
consequences. Upon any such waiver of a past default, such default shall cease
to exist, and any Servicer Termination Event arising therefrom shall be deemed
to have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent
thereto.
ARTICLE 11
CONCERNING THE CUSTODIAN
11.1 Duties of Custodian.
(a) The Custodian undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement. Any permissive right of the
Custodian contained in this Agreement shall not be construed as a duty.
(b) The Custodian upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to it which are specifically required to be furnished pursuant to any provision
of this Agreement (other than the Automobile Loans, the review of which is
specifically governed by the terms of Article 3) to the extent specifically set
forth herein, shall examine them to determine whether they conform to the
requirements of this Agreement to the extent specifically set forth herein. If
any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Custodian shall inform the Servicer who
shall take such action as it deems appropriate to have the instrument corrected.
The Custodian shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Issuer or the Servicer or the Backup Servicer, and
accepted by the Custodian in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Custodian from liability for its own grossly negligent action, its own grossly
negligent failure to act or its own misconduct; provided, however, that, as
applicable:
(i) the Custodian's duties and obligations shall be determined
solely by the express provisions of this Agreement and it shall
not be liable except for the performance of such duties and
obligations as are specifically set forth
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in this Agreement; no implied covenants or obligations shall be
read into this Agreement against it and, in the absence of bad
faith on its part, it may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed in
any certificates or opinions furnished to it and conforming to
the requirements of this Agreement, upon such statements and
opinions expressed;
(ii) the Custodian shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that it was grossly negligent in ascertaining
the pertinent facts if it was required to do so;
(iii) the Custodian shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by the
Custodian in good faith in accordance with the direction of
Certificateholders entitled to at least 25% of the Voting
Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Custodian, or
exercising any power conferred upon the Custodian, under this
Agreement; and
(iv) the protections, immunities and indemnities afforded to the
Custodian hereunder shall also be available to it acting in the
capacity of Paying Agent, Authenticating Agent and Certificate
Registrar.
11.2 Certain Matters Affecting Custodian.
Except as otherwise provided in Section 11.1:
(i) the Custodian may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(ii) the Custodian may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and
in accordance therewith;
(iii) the Custodian shall be under no obligation to exercise any
powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute,
conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered to
the Custodian reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein
or thereby; the Custodian shall not be required to expend or
risk its own funds or otherwise incur any financial liability
in
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the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not
reasonably assured to it;
(iv) the Custodian shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the powers conferred
upon it by this Agreement;
(v) the Custodian shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Certificateholders
entitled to at least 25% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the
Custodian of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Custodian not reasonably assured to it by the
security afforded to it by the terms of this Agreement, it may
require reasonable indemnity against such expense or liability
as a condition to taking any such action;
(vi) the Custodian may perform any duties hereunder either directly
or by or through agents or attorneys; provided, however, that
it shall remain responsible for all acts and omissions of such
agents or attorneys within the scope of its employment to the
same extent as it is responsible for its own actions and
omissions hereunder; and
(vii) the Custodian shall not be responsible for any act or omission
of the Servicer or the Backup Servicer, the Issuer or the
Seller.
11.3 Custodian Not Liable for Validity or Sufficiency of Certificates or
Automobile Loans.
The recitals contained herein and in the Certificates, other than the
statements, if any, attributed to the Custodian in Article 6 (except to the
extent the Custodian is relying on information provided to it by the Servicer in
making such statements) and the signature of the Certificate Registrar and the
Authenticating Agent set forth on each outstanding Certificate, shall be taken
as the statements of the Issuer or the Servicer, as the case may be, and the
Custodian assumes no responsibility for their correctness. The Custodian makes
no representations as to the validity or sufficiency of this Agreement or of any
Certificate (other than as to the signature of the Custodian set forth thereon)
or of any Automobile Loan or related document. The Custodian shall not be
accountable for the use or application by the Issuer of any of the Certificates
issued to it or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Issuer in respect of the assignment of the
Automobile Loans to the Custodian, or any funds deposited in or withdrawn from
the Certificate Account or any other account by or on behalf of the Issuer or
the Servicer. The Custodian shall not be responsible for the accuracy or content
of any resolution, certificate, statement, opinion, report, document, order
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or other instrument furnished by the Issuer or the Servicer, and accepted by the
Custodian in good faith, pursuant to this Agreement.
11.4 Custodian May Own Certificates.
The Custodian or any agent of the Custodian, in its individual or any
other capacity, may become the owner or pledgee of Certificates with the same
rights (except as otherwise provided in the definition of "Certificateholder")
it would have if it were not the Custodian or such agent.
11.5 Fees and Expenses of Custodian; Indemnification of Custodian.
(a) On each Distribution Date, the Custodian shall withdraw from the funds
on deposit in the Collection Account, in the manner set forth in Section 6.4(a),
and pay to itself all earned but unpaid Custodian Fees, as compensation for all
services rendered by the Custodian in the exercise and performance of any of the
powers and duties of the Custodian hereunder. The Custodian Fee shall constitute
the Custodian's sole compensation for such services to be rendered by it.
(b) The Custodian and any director, officer, employee, Affiliate or agent
of the Custodian shall be entitled to be indemnified for and held harmless out
of the ACAR Series 2002-A Certificateholders' Assets against any loss, liability
or reasonable "out-of-pocket" expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement arising out of, or incurred in connection with
this Agreement, the Automobile Loans or the Certificates) ("Custodian
Liability"); provided, that neither the Custodian nor any of the other above
specified Persons shall be entitled to indemnification pursuant to this Section
11.5(b) for (1) any liability specifically required to be borne by such Persons
pursuant to the terms hereof, or (2) any loss, liability or expense incurred by
reason of wilful misfeasance, bad faith or negligence in the performance of the
Custodian's obligations and duties hereunder, or as may arise from a breach of
any representation, warranty or covenant of the Custodian made herein. The
provisions of this Section 11.5(b) and of Section 11.5(b) shall survive any
resignation or removal of the Custodian and appointment of a successor
Custodian.
(c) If the Custodian Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 11.5(b) is invalid
or unenforceable, then an amount shall be paid out of the ACAR Series 2002-A
Certificateholders' Assets as a contribution to the amount paid or payable by
the Custodian as a result of such Custodian Liability in such proportion as is
appropriate to reflect the relative fault of any other parties on the one hand
and the Custodian on the other in connection with the actions or omissions which
resulted in such Custodian Liability, as well as any other relevant equitable
considerations.
11.6 Eligibility Requirements for Custodian.
The Custodian hereunder shall at all times be a trust company organized
under the laws of Canada or any province of Canada and duly authorized and
licensed to carry on business in all of the Provinces and Territories of Canada,
having a combined capital and surplus of at least $10,000,000.00 and subject to
supervision by the Office of the Superintendent of Financial Institutions or
comparable provincial regulatory authority. If such company files reports at
least
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annually, pursuant to law or to the requirements of the aforesaid regulatory
authority, then for the purposes of this Section the combined capital and
surplus of such company shall be deemed to be its combined capital and surplus
as set forth in its most recent report so filed. The Custodian shall (except
where the Custodian is The Trust Company of Bank of Montreal or BNY Trust
Company of Canada) also be an entity with a credit rating on its long term
unsecured debt of at least "Aa2" by Moody's "AA" by Standard & Poor's and "AA"
by DBRS or such other rating that shall not result in the qualification,
downgrading or withdrawal of the rating or ratings assigned to one or more
Classes of the Certificates by any Rating Agency. In case at any time the
Custodian shall cease to be eligible in accordance with the provisions of this
Section, the Custodian shall resign immediately in the manner and with the
effect specified in Section 11.7; provided, that if the Custodian shall cease to
be so eligible because its combined capital and surplus is no longer at least
$10,000,000.00, and if the Custodian proposes to the other parties hereto to
enter into an agreement with (and reasonably acceptable to) each of them, and if
in light of such agreement the Custodian's continuing to act in such capacity
would not (as evidenced in writing by each Rating Agency) cause any Rating
Agency to qualify, downgrade or withdraw any rating assigned thereby to any
Class of Certificates, then upon the execution and delivery of such agreement
the Custodian shall not be required to resign, and may continue in such
capacity, for so long as none of the ratings assigned by the Rating Agencies to
the Certificates is adversely affected thereby. The corporation or association
serving as Custodian may have normal banking and trust relationships with the
Issuer, the Servicer and their respective Affiliates.
11.7 Resignation and Removal of Custodian.
(a) The Custodian may at any time resign and be discharged from its
obligations hereunder by giving 60 days written notice thereof to the Issuer,
the Servicer, and to all Certificateholders at their respective addresses set
forth in the Certificate Register. Upon receiving such notice of resignation,
the Issuer shall promptly appoint a successor Custodian acceptable to the Issuer
by written instrument, in duplicate, which instrument shall be delivered to the
resigning Custodian and to the successor Custodian, and which appointment of
successor Custodian will not result, in and of itself, in a downgrading,
withdrawal or qualification of the rating then assigned by the Rating Agencies
to any Class of Certificates as confirmed in writing by each of the Rating
Agencies. A copy of such instrument shall be delivered to the Servicer, the
Backup Servicer and the Certificateholders by the Issuer. If no successor
Custodian shall have been so appointed and have accepted appointment within 60
days after the giving of such notice of resignation, the resigning Custodian may
petition any court of competent jurisdiction for the appointment of a successor
Custodian.
(b) If at any time the Custodian shall cease to be eligible in accordance
with the provisions of Section 11.6 and shall fail to resign after written
request therefor by the Issuer, or if at any time the Custodian shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver,
receiver manager, trustee, liquidator or Person with similar powers respecting
the Custodian or of its property shall be appointed, or any public official
shall take charge or control of the Custodian or of its property or affairs for
the purpose of conservation or liquidation, or if the Custodian shall fail, then
the Issuer may remove the Custodian and appoint a successor Custodian, if
necessary, acceptable to the Servicer and the Backup Servicer by written
instrument, in duplicate, which instrument shall be delivered to the Custodian
so removed and to
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the successor Custodian. A copy of such instrument shall be delivered to the
Servicer, the Backup Servicer and the Certificateholders by the Issuer.
(c) The Certificateholders entitled to at least 66 2/3% of the Voting
Rights may at any time (with or without cause) remove the Custodian and appoint
a successor Custodian, if necessary, by written instrument or instruments, in
triplicate, signed by such Certificateholders or their attorneys-in-fact duly
authorized, one complete set of which instruments shall be delivered to the
Servicer, one complete set to the Custodian so removed and one complete set to
the successor Custodian so appointed. A copy of such instrument shall be
delivered to the Issuer, the Servicer, the Backup Servicer and the remaining
Certificateholders by the successor so appointed. In the event that the
Custodian is terminated or removed pursuant to this Section 11.17, all of its
rights and obligations under this Agreement and in and to the Automobile Loans
shall be terminated, other than any rights or obligations that accrued prior to
the date of such termination or removal (including the right to receive all
fees, expenses and other amounts accrued or owing to it under this Agreement,
with respect to periods prior to the date of such termination or removal and no
termination without cause shall be effective until the payment of such amounts
to the Custodian).
(d) Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this Section 11.7 shall
not become effective until acceptance of appointment by the successor Custodian
as provided in Section 11.8.
(e) Notwithstanding anything to the contrary contained in this Section
11.7, upon receipt of all necessary regulatory approvals, BNY Trust Company of
Canada shall become the Custodian upon compliance with the provisions of Section
11.8.
11.8 Successor Custodian.
(a) Any successor Custodian appointed as provided in Section 11.7 shall
execute, acknowledge and deliver to the Issuer, the Servicer, the Backup
Servicer and to its predecessor Custodian an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Custodian shall become effective and such successor Custodian,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as Custodian herein. The Issuer, the
Servicer, the Backup Servicer and the predecessor Custodian shall execute and
deliver such instruments and do such other things as may reasonably be required
to more fully and certainly vest and confirm in the successor Custodian all such
rights, powers, duties and obligations, and to enable the successor Custodian to
perform its obligations hereunder. Any resignation or removal of the Custodian
and appointment of a successor Custodian will not become effective until
acceptance of appointment by the successor Custodian. The costs of registering
any transfers of the ACAR Series 2002-A Certificateholders' Assets to a
successor Custodian shall be: (i) if the Custodian is terminated as a result of
a material breach or default relating to the performance of its obligations
under this Agreement, paid by the Custodian, and (ii) if the Custodian
voluntarily resigns (except where such voluntary resignation arises in
connection with BNY Trust Company of Canada becoming the Custodian, or where
such voluntary resignation is due to: (x) the material default by another party
hereto in the performance of said party's obligations hereunder (including,
without limitation the non-payment of the Custodian Fee), or (y) a material
change in the duties and responsibilities of the
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Custodian hereunder which the Custodian has not consented to), up to a maximum
of, if such resignation occurs: (a) during the first year of its term as
Custodian, the greater of $10,000 and one half of the fees due or paid to the
Custodian to the date of such resignation, and (b) at any time after the first
year of its term as Custodian, one half of the fees due or paid to the Custodian
during the preceding 12 month period.
(b) No successor Custodian shall accept appointment as provided in this
Section 11.8, unless at the time of such acceptance such successor Custodian
shall be eligible under the provisions of Section 11.6.
(c) Upon acceptance of appointment by a successor Custodian as provided in
this Section 11.8, such successor Custodian shall mail notice of the succession
of such Custodian hereunder to the Issuer and the Certificateholders.
11.9 Amalgamation or Consolidation of Custodian.
Any entity into which the Custodian may be amalgamated or combined or with
which it may be consolidated or any entity resulting from any amalgamation,
conversion or consolidation to which the Custodian shall be a party, or any
entity succeeding to the corporate trust business of the Custodian, shall be the
successor of the Custodian hereunder, provided such entity shall be eligible
under the provisions of Section 11.6, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
11.10 Appointment of Co-Custodian, Separate Custodian or Sub-Custodian.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the ACAR Series 2002-A Certificateholders' Assets or property securing the
same may at the time be located, the Servicer and the Custodian shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Custodian to act as co-Custodian or co-Custodians,
jointly with the Custodian, or separate Custodian or separate Custodians, of all
or any part of the ACAR Series 2002-A Certificateholders' Assets, and to vest in
such Person or Persons, in such capacity, such title to the ACAR Series 2002-A
Certificateholders' Assets, or any part thereof, and, subject to the other
provisions of this Section 11.10, such powers, duties, obligations and rights as
the Servicer may consider necessary or desirable. No co-Custodian or separate
Custodian hereunder shall be required to meet the terms of eligibility as a
successor Custodian under Section 11.6. hereunder and no notice to
Certificateholders of the appointment of co-Custodian(s) or separate
Custodian(s) shall be required under Section 11.8.
(b) In the case of any appointment of a co-Custodian or separate Custodian
pursuant to this Section 11.10 all rights, powers, duties and obligations
conferred or imposed upon the Custodian shall be conferred or imposed upon and
exercised or performed by the Custodian and such separate Custodian or
co-Custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether as
Custodian hereunder or as successor to the Servicer hereunder), the Custodian
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and
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obligations (including the holding of title to the ACAR Series 2002-A
Certificateholders' Assets or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate Custodian or co-Custodian at
the direction of the Custodian.
(c) Any notice, request or other writing given to the Custodian shall be
deemed to have been given to each of the then separate Custodians and
co-Custodians, as effectively as if given to each of them. Every instrument
appointing any separate Custodian or co-Custodian shall refer to this Agreement
and the conditions of this Section 11.10. Each separate Custodian and
co-Custodian, upon its acceptance of such appointment, shall be vested with the
property specified in its instrument of appointment, either jointly with the
Custodian or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Custodian. Every such instrument shall be filed with the
Custodian.
(d) Any separate Custodian or co-Custodian may, at any time, constitute
the Custodian, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate Custodian or
co-Custodian shall cease to exist, become incapable of acting, resign or be
removed, all of its estates, properties, rights and remedies shall vest in and
be exercised by the Custodian, to the extent permitted by law, without the
appointment of a new or successor Custodian.
(e) The appointment of a co-Custodian or separate Custodian under this
Section 11.10 shall not relieve the Custodian of its duties and responsibilities
hereunder.
11.11 Appointment of Authenticating Agents.
(a) The Custodian may appoint one or more Authenticating Agents, which
shall be authorized to act on behalf of the Custodian in authenticating
Certificates. The Custodian is hereby initially appointed (and hereby agrees to
act in accordance with the terms hereof) as Authenticating Agent for the purpose
of authenticating Certificates executed and delivered by the Custodian under
Article 7 upon original issuance or upon transfer and exchange of Certificates
as herein provided. Each Authenticating Agent other than the Custodian must be
organized and doing business as a trust company under the laws of Canada or any
province thereof, have a combined capital and surplus of at least
$10,000,000.00, and be subject to supervision by the Office of the
Superintendent of Financial Institutions or comparable provincial authority.
Each Authenticating Agent shall be subject to the same obligations, standard of
care, protection and indemnities as would be imposed on, or would protect, the
Custodian hereunder. If the Custodian is no longer the Authenticating Agent, any
provision or requirement herein requiring notice or any information or
documentation to be provided to the Authenticating Agent shall be construed to
require that such notice, information or documentation also be provided to the
Custodian.
(b) Any Person into which any Authenticating Agent may be amalgamated or
combined or with which it may be consolidated, shall be a party, or any Person
succeeding to the corporate agency business of any Authenticating Agent, shall
continue to be the Authenticating Agent without the execution or filing of any
paper or any further act on the part of the Custodian or the Authenticating
Agent.
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(c) Any Authenticating Agent may at any time resign by giving at least 30
days' advance written notice of resignation to the Custodian, the Certificate
Registrar, the Servicer and the Issuer. The Custodian may at any time terminate
the agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent, the Servicer, the Certificate Registrar and the
Issuer. Upon receiving a notice of resignation or upon such a termination, or in
case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 11.11, the Custodian may appoint
a successor Authenticating Agent, in which case the Custodian shall give written
notice of such appointment to the Servicer, the Certificate Registrar and the
Issuer and shall mail notice of such appointment to all Certificateholders;
provided, however, that no successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 11.11. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent. No Authenticating Agent shall have responsibility or liability for any
action taken by it as such at the direction of the Custodian.
11.12 Appointment of Paying Agent.
The Custodian may appoint a Paying Agent for the purpose of making
distributions to Certificateholders hereunder. The Custodian shall cause such
Paying Agent to execute and deliver to the Custodian an instrument in which such
Paying Agent shall agree with the Custodian that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Deposit
Account in trust for the benefit of the Certificateholders entitled thereto
until such sums shall be paid to the Certificateholders. All funds remitted by
the Custodian or the Servicer to any such Paying Agent for the purpose of making
distributions shall be paid to Certificateholders on each Distribution Date and
any amounts not so paid shall be returned on such Distribution Date to the
Custodian or the Servicer, as applicable. If the Paying Agent is not the
Custodian or the Servicer, the Custodian or the Servicer shall remit to the
Paying Agent on the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall have
a rating (except where the Paying Agent is The Trust Company of Bank of Montreal
or BNY Trust Company of Canada) of at least "A" (or its equivalent) by each of
Moody's, Standard & Poor's and DBRS, or such lower rating as will not result in
downgrading or withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies. The Custodian may enter into
agreements to appoint a Paying Agent which is not the Custodian, provided that,
such agreement: (i) is consistent with this Agreement in all material respects;
(ii) provides that if the Custodian shall for any reason no longer act in the
capacity of Custodian hereunder, the successor Custodian or its designee may
thereupon assume all of the rights and, except to the extent they arose prior to
the date of assumption, obligations of the Paying Agent under such agreement or
alternatively, may terminate such agreement without cause and without payment of
any penalty or termination fee; and (iii) does not permit the Paying Agent any
rights of indemnification that may be satisfied out of the ACAR Series 2002-A
Certificateholders' Assets. The appointment of any Paying Agent shall not
relieve the Custodian from any of its obligations hereunder, and the Custodian
shall remain responsible for all acts and omissions of any Paying Agent to the
extent such Paying Agent would have been responsible pursuant to the terms
hereof. The initial Paying Agent shall be the Custodian. Notwithstanding
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anything herein to the contrary, if the Custodian is no longer the Paying Agent,
any provision or requirement herein requiring notice or any information to be
provided to the Paying Agent shall be construed to require that such notice,
information or documentation also be provided to the Custodian.
11.13 Representations, Warranties and Covenants of Custodian.
(a) The Custodian hereby represents and warrants to the Servicer, the
Backup Servicer and the Issuer and for the benefit of the Certificateholders, as
of the Closing Date, that:
(i) The Custodian is a trust company duly organized, validly
existing and in good standing under the laws of Canada.
(ii) The execution and delivery of this Agreement by the
Custodian, and the performance and compliance with the
terms of this Agreement by the Custodian, will not violate
the Custodian's organizational documents or constitute a
default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in a
breach of, any material agreement or other material
instrument to which it is a party or by which it is bound.
(iii) Except to the extent that the laws of certain jurisdictions
in which any part of the ACAR Series 2002-A
Certificateholders' Assets may be located require that a
co-Custodian or separate Custodian be appointed to act with
respect to such property as contemplated by Section 11.10,
the Custodian has the full power and authority to carry on
its business as now being conducted and to enter into and
consummate all transactions contemplated by this Agreement
has duly authorized the execution, delivery and performance
of this Agreement and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid
and binding obligation of the Custodian, enforceable
against the Custodian in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights
of creditors of banks, and (B) general principles of
equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Custodian is not in violation of, and its execution and
delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not
constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of
any federal, provincial or local governmental or regulatory
authority, which violation, in the Custodian's good faith
and reasonable judgment, is likely to affect
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materially and adversely the ability of the Custodian to
perform its obligations under this Agreement.
(vi) No litigation is pending or, to the best of the Custodian's
knowledge, threatened against the Custodian that, if
determined adversely to the Custodian, would prohibit the
Custodian from entering into this Agreement or, in the
Custodian's good faith and reasonable judgment, is likely
to materially and adversely affect the ability of the
Custodian to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required for the execution,
delivery and performance by the Custodian of or compliance
by the Custodian with this Agreement or the consummation of
the transactions contemplated by this Agreement has been
obtained and is effective.
ARTICLE 12
TERMINATION
12.1 Termination.
The respective obligations of the Seller, the Issuer, the Servicer, the
Backup Servicer and the Custodian created hereby and the co-ownership
arrangement created by this Agreement shall terminate and be of no further force
or effect upon the earlier of (i) the final distribution by the Custodian of all
moneys or other property or proceeds of the ACAR Series 2002-A
Certificateholders' Assets in accordance with the terms of this Agreement or
(ii) the time provided in Section 12.2 at which AmeriCredit Canada succeeds to
the interests of the Certificateholders in and to the ACAR Series 2002-A
Certificateholders' Assets.
12.2 Optional Purchase of All Automobile Loans.
(a) On any Distribution Date on which the Adjusted Certificate Balance
(after giving effect to distributions or deposits) to be made on such date
(otherwise than from the proceeds of any Optional Purchase Price deposited to
the Collection Account pursuant to this Section) shall be less than or equal to
10% of the initial Adjusted Certificate Balance, AmeriCredit Canada shall have
the option to purchase the ACAR Series 2002-A Certificateholders' Assets (other
than the Custodial Accounts and the funds or Eligible Investments on deposit
therein or credited thereto); provided, however, that the amount to be paid for
such purchase (as set forth in the following sentence) shall be sufficient to
pay the full amount of the aggregate Adjusted Certificate Balance of all Classes
of Offered Certificates then outstanding and any unpaid Certificate Rate
amounts. To exercise such option, AmeriCredit Canada, shall deposit an amount
(the "Optional Purchase Price") equal to the aggregate Purchase Amount for the
Automobile Loans (including Liquidated Automobile Loans), plus the appraised
value of any other property held by the Custodian, such value to be determined
by an appraiser mutually agreed upon by the Servicer and the Custodian. Upon
such deposit of the Optional Purchase Price in the Collection Account,
AmeriCredit Canada shall succeed to all interests of the Certificateholders in
and to the
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ACAR Series 2002-A Certificateholders' Assets (other than the Custodial Accounts
and the funds or Eligible Investments on deposit therein or credited thereto).
(b) Upon the exercise of the "purchase right" in Section 12.2(a), the
Custodian shall apply the Optional Purchase Price deposited by AmeriCredit
Canada into the Collection Account to (i) make the distributions and payments
required under Sections 6.4(a)(i) and (ii), as applicable, (ii) make the final
distributions in respect of any remaining outstanding Certificateholders'
Certificate Rate Distributable Amounts, Maturity Advances and Certificate
Balances, and (iii) deposit the balance to the Spread Account for application in
accordance with Sections 6.5 and 6.6.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 Amendment.
(a) This Agreement may be amended from time to time by the parties hereto,
with the consent of the Custodian (which consent may not be unreasonably
withheld) but without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions in this Agreement, or to make
any other provisions with respect to matters or questions arising under this
Agreement which shall not be inconsistent with the provisions of this Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel delivered to the Custodian, adversely affect in any material respect the
interests of any Certificateholder.
(b) This Agreement may also be amended from time to time by the Seller,
the Servicer and the Issuer, with the consent of a Certificate Majority for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Automobile Loans or distributions that are
required to be made for the benefit of the Certificateholders, or (ii) reduce
the aforesaid percentage of the Certificateholders required to consent to any
such amendment, without the consent of the holders of all the outstanding
Certificates.
(c) Promptly after the execution of any such amendment, the Custodian
shall furnish written notification of the substance of such amendment or consent
to each Certificateholder and the Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders
pursuant to this Section to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents (and any other consents
of Certificateholders provided for in this Agreement) and of evidencing the
authorization of any action by Certificateholders shall be subject to such
reasonable requirements as the Custodian may prescribe.
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(e) Prior to the execution of any amendment to this Agreement, the
Custodian and Backup Servicer shall be entitled to receive and conclusively rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and the Opinion of Counsel referred to
in Section 13.2(h)(i) has been delivered. The Custodian and the Backup Servicer
may, but shall not be obligated to, enter into any such amendment which affects
the Issuer's, the Custodian's or the Backup Servicer's, as applicable, own
rights, duties or immunities under this Agreement or otherwise.
13.2 Protection of Title to Issuer.
(a) The Servicer shall execute and file such financing statements,
assignments and other documents and cause to be executed, delivered and filed
such financing change or other statements, assignments and other documents
(collectively, the "Financing Statements"), all in such manner and in such
places as may be required by law fully to preserve, maintain and protect the
interest of the Issuer and the interests of the Custodian and the
Certificateholders in the Automobile Loans and in the proceeds thereof. The
Seller shall deliver (or cause to be delivered) to the Custodian file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing.
(b) Neither the Seller nor the Servicer shall change its name, identity or
corporate structure in any manner that would, could or might make any Financing
Statement filed in accordance with paragraph (a) above seriously misleading,
unless it shall have given the Custodian at least five days' prior written
notice thereof and shall have promptly filed appropriate amendments to all
previously filed Financing Statements. Promptly upon such filing, the Seller or
the Servicer, as the case may be, shall deliver an Opinion of Counsel in form
and substance reasonably satisfactory to the Custodian, stating either (A) all
financing statements and financing change statements have been executed and
filed that are necessary fully to preserve and protect the interest of the
Issuer and the Custodian in the Automobile Loans, and reciting the details of
such filings or referring to prior Opinions of Counsel in which such details are
given, or (B) no such action shall be necessary to preserve and protect such
interest.
(c) Each of the Seller and the Servicer shall have an obligation to give
the Custodian at least 60 days' prior written notice of any relocation of its
principal executive office if, as a result of such relocation, the applicable
provisions of the PPSA would require the filing of any amendment of any
previously filed Financing Statement or of any new Financing Statement and shall
promptly file any such amendment. The Servicer shall at all times maintain each
office from which it shall service Automobile Loans, and its principal executive
office, within Canada.
(d) The Servicer shall maintain accounts and records as to each Automobile
Loan accurately and in sufficient detail to permit (i) the reader thereof to
know at any time the status of such Automobile Loan, including payments and
recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Automobile Loan and the amounts from time to time deposited in the Collection
Account in respect of such Automobile Loan.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Automobile Loans to the
Issuer, the Servicer's master
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computer records (including any backup archives) that refer to an Automobile
Loan shall indicate clearly the interest of the Issuer in such Automobile Loan
and that such Automobile Loan is owned by the Issuer. Indication of the Issuer's
interest in an Automobile Loan shall be deleted from or modified on the
Servicer's computer systems when, and only when, the related Automobile Loan
shall have been paid in full or repurchased.
(f) If at any time the Seller or the Servicer shall propose to sell,
grant a security interest in or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts (including any restored from backup
archives) that, if they shall refer in any manner whatsoever to any Automobile
Loan, shall indicate clearly that such Automobile Loan has been sold and is
owned by the Issuer.
(g) Upon request, the Servicer shall furnish to the Custodian, within
five Business Days, a list of all Automobile Loans (by contract number and name
of Obligor) then held as part of the ACAR Series 2002-A Certificateholders'
Assets, together with a reconciliation of such list to the Schedule of
Automobile Loans and to each of the Servicer's Certificates furnished before
such request indicating removal of Automobile Loans from the Issuer.
(h) The Seller and the Servicer shall deliver to the Issuer and the
Custodian :
(i) promptly after the execution and delivery of the Agreement
and, if required pursuant to Section 13.1, of each amendment,
an Opinion of Counsel stating that, in the opinion of such
Counsel, in form and substance reasonably satisfactory to the
Custodian, either (A) all Financing Statements have been
executed and filed that are necessary fully to preserve and
protect the interest of the Custodian and the
Certificateholders in the Automobile Loans, and reciting the
details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (B) no such action
shall be necessary to preserve and protect such interest; and
(ii) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than
three months after the Cut-off Date, an Opinion of Counsel,
dated as of a date during such 90-day period, stating that, in
the opinion of such counsel, either (A) all Financing
Statements have been executed and filed that are necessary
fully to preserve and protect the interest of the Custodian
and the Certificateholders in the Automobile Loans, and
reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (B) no
such action shall be necessary to preserve and protect such
interest.
Each Opinion of Counsel referred to in clause (i) or (ii) above
shall specify any action necessary (as of the date of such opinion) to be taken
in the following year to preserve and protect such interest.
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13.3 Notices.
All demands, notices and communications upon or to the Seller, the
Servicer or the Rating Agencies under this Agreement shall be in writing,
personally delivered, or mailed by certified mail, return receipt requested, and
shall be deemed to have been duly given upon receipt (a) in the case of the
Seller to AmeriCredit Canada 2002-A Corp., c/o AmeriCredit Corp., 801 Cherry
Street, Fort Worth, Texas 76102, Attention: Chief Financial Officer (b) in the
case of the Servicer to AmeriCredit Financial Services of Canada Ltd., 801
Cherry Street, Suite 3900, Fort Worth, Texas 76102, Attention: Chief Financial
Officer, (c) in the case of the Issuer, to Merrill Lynch Financial Assets Inc.,
181 Bay Street, Suite 500, Toronto, Ontario, Canada, M5J 2V8, Attention: Mark
Dickerson, (d) in the case of the Custodian, at the Corporate Trust Office, (e)
in the case of the Backup Servicer to Bank One, NA, 1111 Polaris Parkway, Ste
1K, Columbus, OH 43240, Attention Global Trust Corporate Services, (f) in the
case of Moody's, to Moody's Investors Service, Inc., ABS Monitoring Department,
99 Church Street, New York, New York 10007; (g) in the case of Standard & Poor's, to Standard & Poor's Ratings Group, 55 Water Street, New York, New York
10041, Attention: Asset Backed Surveillance Department and (h) in the case of
DBRS, 200 King Street West, Suite 1304, Sun Life Centre West Tower, P.O. Box 34,
Toronto, Ontario M5H 3T4, Attention: Structured Finance. Any notice required or
permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Certificateholder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in the
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder shall receive such notice.
13.4 Assignment.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
Notwithstanding anything to the contrary contained herein, except as provided in
Sections 8.4 and 9.3 and as provided in the provisions of this Agreement
concerning the resignation of the Servicer, this Agreement may not be assigned
by the Seller or the Servicer without the prior written consent of the
Custodian, the Backup Servicer and a Certificate Majority.
13.5 Limitations on Rights of Others.
The provisions of this Agreement are solely for the benefit of the parties
hereto, the Interest Rate Cap Counterparty Provider and the Certificateholders,
as third-party beneficiaries. Nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
13.6 Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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13.7 Separate Counterparts.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same
instrument.
13.8 Headings.
The headings of the various Articles and Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
13.9 Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable
therein, and each of the parties hereby attorns to the non-exclusive
jurisdiction of the courts of the Province of Ontario.
13.10 Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, the Servicer
and the Seller shall not, prior to the date which is one year and one day after
the termination of this Agreement with respect to the Issuer, acquiesce,
petition or otherwise invoke or cause the Issuer to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Issuer under any federal or provincial bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Issuer.
(b) Notwithstanding any prior termination of this Agreement, the Servicer
shall not, prior to the date that is one year and one day after the termination
of this Agreement with respect to the Seller, acquiesce to, petition or
otherwise invoke or cause the Seller to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller under any federal or provincial bankruptcy, insolvency or similar
law, appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator, or other similar official of the Seller or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller.
13.11 Limitation of Liability of Custodian.
Notwithstanding anything contained herein to the contrary, The Trust
Company of Bank of Montreal has entered into this Agreement not in its
individual capacity but solely in its capacity as Custodian. No property or
assets of The Trust Company of Bank of Montreal, whether beneficially owned by
it in its individual capacity or otherwise, will be subject to levy, execution
or other enforcement procedure with regard to any obligations hereunder. No
recourse may be had or taken, directly or indirectly, against The Trust Company
of Bank of Montreal, in its individual capacity, or any incorporator,
shareholder, officer, director, employee or agent of The Trust Company of Bank
of Montreal or of any predecessor or successor of The Trust Company of Bank of
Montreal or their respective property and assets with regard to any of its
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obligations hereunder. Any reference in this Section 13.11 to "The Trust Company
of Bank of Montreal" shall mean "The Trust Company of Bank of Montreal and its
successors and permitted assigns".
13.12 Independence of the Servicer.
For all purposes of this Agreement, the Servicer shall be an independent
contractor and shall not be subject to the supervision of the Issuer, the
Custodian and Backup Servicer with respect to the manner in which it
accomplishes the performance of its obligations hereunder. Unless expressly
authorized by this Agreement, the Servicer shall have no authority to act for or
represent the Issuer or the Custodian in any way and shall not otherwise be
deemed an agent of the Issuer or the Custodian.
13.13 No Joint Venture.
Nothing contained in this Agreement (i) shall constitute the Servicer and
either of the Issuer or the Custodian as members of any partnership, joint
venture, association, syndicate, unincorporated business or other separate
entity, (ii) shall be construed to impose any liability as such on any of them
or (iii) shall be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the day and the year first above written.
AMERICREDIT CANADA 2002-A CORP., as Seller
By: ___________________________________________
Name:
Title:
MERRILL LYNCH FINANCIAL ASSETS INC., as Issuer
By: ___________________________________________
Name:
Title:
AMERICREDIT FINANCIAL SERVICES OF CANADA LTD.,
as Servicer
By: ___________________________________________
Name:
Title:
BANK ONE, NA, as Backup Servicer
By: ___________________________________________
Name:
Title:
THE TRUST COMPANY OF BANK OF MONTREAL, as
Custodian
By: ___________________________________________
Name:
Title:
SCHEDULE A
SCHEDULE OF AUTOMOBILE LOANS
SCHEDULE B
SCHEDULE OF REPRESENTATIONS AND WARRANTIES
1. Characteristics of Automobile Loans. Each Automobile Loan (A) was
originated (i) by AmeriCredit Canada, or (ii) by a Dealer and purchased by
AmeriCredit Canada from such Dealer under an existing Dealer Agreement or
pursuant to a Dealer Assignment with AmeriCredit Canada and was validly
assigned by such Dealer to AmeriCredit Canada pursuant to a Dealer
Assignment, (B) was originated by the Seller or such Dealer for the retail
sale of a Financed Vehicle in the ordinary course of the Seller's or the
Dealer's business, in each case was originated in accordance with the
Seller's credit policies and was fully and properly executed by the
parties thereto, and the Seller and each Dealer had all necessary licenses
and permits to originate Automobile Loans in the province where the Seller
or each such Dealer was located, (C) contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for realization against the collateral security, (D) is an
Automobile Loan which provides for level monthly payments (provided that
the period in the first Collection Period and the payment in the final
Collection Period of the Automobile Loan may be minimally different from
the normal period and level payment) which, if made when due, shall fully
amortize the Amount Financed over the original term, and (E) has not been
amended or collections with respect to which waived, other than as
evidenced in the Automobile Loan File relating thereto.
2. Fraud or Misrepresentation. Each Automobile Loan was originated (i) by the
Seller, or (ii) by a Dealer and was sold by the Dealer to the Seller,
without any fraud or misrepresentation on the part of such Dealer in any
case.
3. Compliance with Law. All requirements of applicable federal, provincial
and local laws, and regulations thereunder (including, without limitation,
consumer protection and cost of credit disclosure laws) in respect of the
Automobile Loans and the Financed Vehicles, have been complied with in all
material respects, and each Automobile Loan and the sale of the Financed
Vehicle evidenced by each Automobile Loan complied at the time it was
originated or made and now complies in all material respects with all
applicable legal requirements.
4. Origination. Each Automobile Loan was originated in Canada, is payable in
Canadian dollars and is one for which the related Obligor has provided to
the Servicer a billing address located in Canada and is not one for which
the related Obligor is an Affiliate of the Seller.
5. Binding Obligation. Each Automobile Loan represents the genuine, legal,
valid and binding payment obligation of the Obligor thereon, enforceable
by the holder thereof in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors' rights generally and
by equitable limitations on the availability of specific remedies,
regardless of whether such enforceability is considered in a proceeding in
equity or at law; and all
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parties to each Automobile Loan had full legal capacity to execute and
deliver such Automobile Loan and all other documents related thereto and
to grant the security interest purported to be granted thereby.
6. No Government Obligor. None of the Automobile Loans is due from the
Government of Canada or any province or from any Canadian agency,
department or instrumentality.
7. Obligor Bankruptcy. At the related Cut-off Date no Obligor had been
identified on the records of the Seller as being the subject of a current
bankruptcy proceeding.
8. Schedule of Automobile Loans. The information set forth in the Schedule of
Automobile Loans has been produced from the Electronic Ledger and was true
and correct in all material respects as of the close of business on the
related Cut-off Date.
9. Marking Records. By the Closing Date, the Seller will have caused the
portions of the Electronic Ledger relating to the Automobile Loans to be
clearly and unambiguously marked to show that the Automobile Loans have
been sold to the Seller by AmeriCredit Canada and resold by the Seller to
the Issuer in accordance with the terms of the Pooling and Servicing
Agreement.
10. Computer Tape. The Computer Tape made available by the Seller to the
Issuer on the Closing Date was complete and accurate as of the related
Cut-off Date and includes a description of the same Automobile Loans that
are described in the Schedule of Automobile Loans.
11. Adverse Selection. No selection procedures adverse to the
Certificateholders were utilized in selecting the Automobile Loans from
those receivables owned by the Seller which met the selection criteria
contained in the Pooling and Servicing Agreement.
12. Chattel Paper. Each Automobile Loan constitutes "chattel paper" as defined
in the PPSA of the provincial law of which governs the perfection of the
interest granted in it.
13. One Original. There is only one original executed copy of each Automobile
Loan.
14. Automobile Loan Files Complete. There exists an Automobile Loan File
pertaining to each Automobile Loan and such Automobile Loan File contains
(a) a fully executed original of the Automobile Loan and (b) the original
executed credit application, or a paper or electronic copy thereof. Each
of such documents which is required to be signed by the Obligor has been
signed by the Obligor in the appropriate spaces. All blanks on any form
have been properly filled in and each form has otherwise been correctly
prepared. The complete Automobile Loan File for each Automobile Loan
currently is in the possession of the Custodian or the Documentary
Custodian, as applicable.
15. Automobile Loans in Force. No Automobile Loan has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such
Automobile Loan has not been released from the lien of the related
Automobile Loan in whole or in part. No terms of any Automobile Loan have
been waived, altered or modified in any respect since its origination,
except by instruments or documents identified in the Automobile Loan File.
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16. Lawful Assignment. No Automobile Loan was originated in, or is subject to
the laws of, any jurisdiction the laws of which would make unlawful, void
or voidable the sale, transfer and assignment of such Automobile Loan
under this Agreement or pursuant to transfers of the Certificates.
17. Good Title. Immediately prior to the conveyance of the Automobile Loans to
the Issuer pursuant to this Agreement, the Seller was the sole owner
thereof and had good and indefeasible title thereto, free of any Lien and,
upon execution and delivery of this Agreement by the Seller, the Issuer
shall have good and indefeasible title to and will be the sole owner of
such Automobile Loans, free of any Lien. No Dealer has a participation in,
or other right to receive, proceeds of any Automobile Loan. The Seller has
not taken any action to convey any right to any Person that would result
in such Person having a right to payments received under the related
Insurance Policies or the related Dealer Agreements or to payments due
under such Automobile Loans.
18. Security Interest in Financed Vehicle. Each Automobile Loan creates or
shall create a valid, binding and enforceable first priority security
interest in favour of the Seller in the Financed Vehicle in favour of the
Seller as secured party. Immediately after the sale, transfer and
assignment thereof by the Seller to the Issuer and by the Issuer to the
Custodian, each Automobile Loan will be secured by an enforceable and
perfected first priority security interest in the Financed Vehicle in
favor of the Custodian as secured party, which security interest is prior
to all other Liens upon and security interests in such Financed Vehicle
which now exist or may hereafter arise or be created (except, as to
priority, for any lien for taxes, labour or materials affecting a Financed
Vehicle). As of the related Cut-off Date there were no Liens or claims for
taxes, work, labour or materials affecting a Financed Vehicle which are or
may be Liens prior or equal to the Liens of the related Automobile Loan.
19. All Filings Made. All filings (including, without limitation, PPSA
filings) required to be made by any Person and actions required to be
taken or performed by any Person in any jurisdiction to give the Issuer a
first priority perfected lien on, or ownership interest in, the Purchased
Assets and the proceeds thereof have been made, taken or performed.
20. No Impairment. The Seller has not done anything to convey any right to any
Person that would result in such Person having a right to payments due
under the Automobile Loan or otherwise to impair the rights of the Issuer,
the Custodian and the Certificateholders in any Automobile Loan or the
proceeds thereof.
21. Automobile Loan Not Assumable. No Automobile Loan is assumable by another
Person in a manner which would release the Obligor thereof from such
Obligor's obligations to the Seller with respect to such Automobile Loan.
22. No Defenses. No Automobile Loan is subject to any right of rescission,
setoff, counterclaim or defense and no such right has been asserted or
threatened with respect to any Automobile Loan.
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23. No Default. There has been no default, breach, violation or event
permitting acceleration under the terms of any Automobile Loan (other than
payment delinquencies of not more than 30 days), and no condition exists
or event has occurred and is continuing that with notice, the lapse of
time or both would constitute a default, breach, violation or event
permitting acceleration under the terms of any Automobile Loan, and there
has been no waiver of any of the foregoing. As of the related Cut-off Date
no Financed Vehicle had been repossessed.
24. Insurance. At the time of an origination of an Automobile Loan by the
Seller or a purchase of an Automobile Loan by the Seller from a Dealer,
each Financed Vehicle is required to be covered by a comprehensive and
collision insurance policy (i) in an amount at least equal to the lesser
of (a) its maximum insurable value or (b) the principal amount due from
the Obligor under the related Automobile Loan, (ii) naming AmeriCredit as
loss payee and (iii) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by
comprehensive and collision coverage. Each Automobile Loan requires the
Obligor to maintain physical loss and damage insurance, naming AmeriCredit
Canada and its successors and assigns as additional insured parties, and
each Automobile Loan permits the holder thereof to obtain physical loss
and damage insurance at the expense of the Obligor if the Obligor fails to
do so. No Financed Vehicle is insured under a policy of Force-Placed
Insurance on the related Cut-off Date.
25. Remaining Principal Balance. At the related Cut-off Date the Principal
Balance of each Automobile Loan set forth in the Schedule of Automobile
Loans is true and accurate in all material respects.
26. Certain Characteristics of Automobile Loans. (A) Each Automobile Loan had
a remaining maturity, as of the Cut-off Date, of not more than 72 months;
(B) each Automobile Loan had an original maturity of not more than 72
months; (C) each Automobile Loan had a Principal Balance as of the Cut-off
Date of not more than $100,000 and not less than $250; (D) each Automobile
Loan has an Annual Percentage Rate of at least 7% and not more than 33%;
(E) no Automobile Loan was in a repossessed status and no related Obligor
was the subject of any voluntary or involuntary bankruptcy or insolvency
proceeding; (F) no Automobile Loan was more than 60 days past due as of
the Cut-off Date (and if any Automobile Loan was past due as of the
Cut-off Date, such Automobile Loan was not one which caused the percentage
of the Pool Balance, determined as of the Statistical Calculation Date and
the Cut-off Date and, which is comprised of Automobile Loans which are 31
to 60 days past due, to exceed 10%); and (G) no funds have been advanced
by the Seller, any Dealer, or anyone acting on behalf of any of them in
order to cause any Automobile Loan to qualify under clause (F) above.
27. No Assignability Restrictions. No Automobile Loan is subject to any
restriction on the sale or assignment thereof, including, without
limitation, any requirement that the related Obligor consent to any such
sale or assignment.
SCHEDULE C
SERVICING POLICIES AND PROCEDURES
The Collection Process
Compliance with provincial and federal collection laws is required of all
AmeriCredit Canada Collection Personnel.
AmeriCredit Canada mails each customer a monthly billing statement 16 to 20 days
before payment is due.
A. All accounts are issued to the Computer Assisted Collection System
("CACS") at 5 days delinquent or at such other dates of delinquency as
determined by historical payment patterns of the account.
B. The CACS segregates accounts into two groups: loans less than 30 days
delinquent and those over 30 days delinquent.
C. Loans delinquent for less than 30 days are then further segregated into
two groups: accounts that have good phone numbers and those that do not.
D. Loans with good phone numbers are transferred to the Davox system
(AmeriCredit Canada's predictive dialling system). The system
automatically dials the phone number related to a delinquent account. When
a connection is made, the account is then routed to the next available
account representative.
E. Loans without good phone numbers are assigned to front-end collectors.
F. All reasonable collection efforts are made in an attempt to prevent these
accounts from becoming 30+ days delinquent - this includes the use of
collection letters. Collection letters may be utilized between 15th and
25th days of delinquency.
G. When an account reaches 31 days delinquent, a collector determines if any
default notification is required in the state where the debtor lives.
H. When an account exceeds 61 days delinquent, the loan is assigned to a
hard-core collector who will continue the collection effort. If the
account cannot be resolved through normal collection efforts (i.e.,
satisfactory payment arrangements) then the account may be submitted for
repossession approval. An officer must approve all repossession requests.
I. CACS allows each collector to accurately document and update each customer
file when contact (verbal or written) is made.
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Repossessions
If repossession of the collateral occurs, the following steps are taken:
A. Proper authorities are notified (if applicable).
B. An inventory of all personal property is taken and a condition report is
prepared on the vehicle.
C. Written notification, as required by state law, is sent to the customer(s)
stating their rights of redemption or reinstatement along with information
on how to obtain any personal property that was in the vehicle at the time
of repossession.
D. Written request to the originating dealer for all refunds due for dealer
adds is made.
E. Collateral disposition through public or private sale, (dictated by state
law), in a commercially reasonable manner, through a third-party auto
auction.
F. After the collateral is liquidated, the debtor(s) is notified in writing of
the deficiency balance owed, if any.
Use of Due Date Changes
Due dates may be changed subject to the following conditions:
G. The account is contractually current or will be brought current with the
due date change.
H. Due date changes cannot exceed the total of 15 days over the life of the
contract.
I. The first instalment payment has been paid in full.
J. Only one due date change in a twelve month period.
An Officer must approve any exceptions to the above stated policy.
Use of Payment Deferments
A payment deferral is offered to customers who have the desire and capacity to
make future payments but who have encountered temporary financial difficulties,
with management approval.
K. Without prior approval, minimum of six payments have been made on the
account and a minimum of nine payments have been made since the most recent
deferment (if any).
L. The account will be brought current with the deferment, but not paid ahead,
without management approval.
M. A deferment fee is collected on all transactions.
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N. No more than eight total payments may be deferred over the life of the
loan, without management approval.
An Officer must approve any exceptions to the above stated policy.
Charge-Offs
It is AmeriCredit Canada's policy that any account that is not successfully
recovered by 120 days delinquent is submitted to an Officer for approval and
charge-off.
It is AmeriCredit Canada's policy to carry all bankruptcy accounts until 120
days delinquent. A partial charge-off is taken for the unsecured portion of the
account. On fully reaffirmed bankruptcy accounts, the accounts can be deferred
current at the time of discharge.
Deficiency Collections
Accounts are assigned to third party collection agencies for deficiency
collections.
EXHIBIT A-1
CLASS A-1 CERTIFICATE
- See Attached -
EXHIBIT A-2
CLASS A-2 CERTIFICATE
- See Attached -
EXHIBIT A-3
CLASS A-3 CERTIFICATE
- See Attached -
EXHIBIT A-4
CLASS B CERTIFICATE
- See Attached -
EXHIBIT A-5
CLASS C CERTIFICATE
- See Attached -
EXHIBIT A-6
CLASS R CERTIFICATE
- See Attached -
EXHIBIT B
SERVICER'S CERTIFICATE
- See Attached -